Justification & Theory of Sharia Law: How the American ...

University of St. Thomas Law JournalVolume 7Issue 3 Spring 2010 Article 5

2010

Justification & Theory of Sharia Law: How theAmerican Declaration of Independence, Bill ofRights and Constitution Are Consistent withIslamic JurisprudenceImam Feisal Abdul Rauf

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Bluebook CitationImam Feisal Abdul Rauf, Justification & Theory of Sharia Law: How the American Declaration of Independence, Bill of Rights andConstitution are Consistent with Islamic Jurisprudence, 7 U. St. Thomas L.J. 452 (2010).

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ARTICLE

A CORDOBA INITIATIVE PROJECT

JUSTIFICATION & THEORY OF

SHARIA LAW: HOW THE

AMERICAN DECLARATION OF

INDEPENDENCE, BILL OF RIGHTS AND

CONSTITUTION ARE CONSISTENT

WITH ISLAMIC JURISPRUDENCE

IMAM FEISAL ABDUL RAUF1

In the first half of the twentieth century, the hitherto European conceptof “nation-state” with new national identities was introduced in much of theworld. With the end of the First World War in 1917 and of the OttomanCaliphate in 1924, new nation-states were created and emerged from theprevious Ottoman empire and its areas of influence: among these new na-tion-states were Iraq, Jordan, Syria, Lebanon, and Saudi Arabia in the ArabMiddle East; and Greece, Turkey, Yugoslavia, and Albania in Europe.Other new nation-states were born in South and South East Asia, drawnaround the boundaries of British and Dutch colonies (such as Malaysia andIndonesia respectively) and the vestiges of the Mogul empire in India.

The rise of ethnic and language-based nation-states catalyzed the no-tion of a religious nation-state—the idea of a Jewish and Islamic State hav-ing been conceived in the late nineteenth century—resulting in the almostsimultaneous birth in 1947–1948 of the Islamic nation-state of Pakistan in

1. Founder and Chairman of the Cordoba Initiative. Liberally incorporating commentsfrom: MOHAMMED ARKOUN, RETHINKING ISLAM (Robert D. Lee trans., 1994); KHALED ABOU EL

FADL, ISLAM AND THE CHALLENGE OF DEMOCRACY (Joshua Cohen ed., 2004); Ebrahim Moosa,The Poetics and Politics of Law After Empire, 1 UCLA J. ISLAMIC & NEAR E. L. 1 (2002) [herein-after Moosa, Poetics]; Ebrahim Moosa, The Dilemma of Islamic Rights Schemes, 15 J.L. & RELIG-

ION 185 (2001) [hereinafter Moosa, Dilemma]; FEISAL ABDUL RAUF, WHAT’S RIGHT WITH ISLAM

(2004); FEISAL ABDUL RAUF, ISLAM: A SACRED LAW (2000); ABDULAZIZ SACHEDINA, THE IS-

LAMIC ROOTS OF DEMOCRATIC PLURALISM (2001); and International Crisis Group, UnderstandingIslamism, 2005 MIDDLE E./N. AFR. REP. 37.

452

2010] JUSTIFICATION & THEORY OF SHARIA LAW 453

the Indian sub-continent, and of the Jewish nation-state of Israel inPalestine.

Muslim political activists, not Muslim scholars and theologians, cre-ated Pakistan. This late-nineteenth/early-twentieth century idea of “IslamicState” originated as a reaction to powerful forces acting upon the MuslimWorld. Among these forces were nationalist movements that divided thenotion of a pan-Islamic concept of the ummah (previously united by theOttoman Caliphate and therefore seen by many as a way to break up theMuslim World); the colonial influence of Western Europe; and the new riseof Soviet Communism—all of which sought to influence the Muslim Worldaway from its culture, norms, and beliefs.

In the post–World War II bipolar world, pressure was placed uponmany countries to align themselves with either the West or the Communistbloc. In reaction, Muslim majority nations established in 1969 the Organi-zation of the Islamic Conference, a fifty-seven-nation bloc that sought toprotect Islamic values.

In almost every one of these nations, Islamic political parties emergedwhose purpose was the establishment of an Islamic State. But what did thismean? As these nations were majority Muslim, the term “Islamic State”obviously meant something more. However, no consensus on the definitionof the term Islamic State exists.

To this end, therefore, I conceived of a project called the Sharia IndexProject.

Phase One of this project explored the degree of attainable consensusamong a broad spectrum of contemporary Muslim scholars (Sunni andShia) on defining the term Islamic State. The proposed understanding ofIslamic State is a state that abides by a list of Islamic Law (Sharia)–basedcriteria that it should protect, provide for, and further. Phase One involvedresearch by scholars, followed by discussion and refinement.2

In Phase Two, a methodology was developed to qualitatively andquantitatively gauge countries (Muslim and non-Muslim majority States) onhow well they have actually fulfilled and met each of these criteria, andthereby determine which institutional systems have currently achieved themost in furthering the set of criteria established in Phase One. The CordobaInitiative had discussions with Zogby International, Gallup, Pew, andothers, to explore how to develop a methodology to measure and indexother nations according to their level of compliance with Sharia.3

2. I have convened six meetings in Kuala Lumpur, Malaysia, of such a group of scholarsfrom Morocco to Indonesia, from 2006–2009 wherein a working definition of an Islamic Statewas benchmarked.

3. Among the possibilities is to conduct a poll where citizens are asked to rate their owncountry on how well it meets each of the criteria Islamic jurists will have established in PhaseOne. Thus, while the role of the Islamic jurists will be to list the principles and rights an IslamicState should safeguard, citizens themselves would rate their own countries on how well their own

454 UNIVERSITY OF ST. THOMAS LAW JOURNAL [Vol. 7:3

The blend of Phase One results, namely providing an ends-driven defi-nition of an Islamic State to counterpoise and complement institution-drivendefinitions, combined with the data from Phase Two, namely measurabledata on which countries achieved the highest scores in Sharia-compliance,will contribute to the continuing scholarly debate on what comprises “Is-lamically authentic” institutional forms and criteria of governance. TheSharia’s emphasis on social justice and safety nets for the poor may wellresult in certain non-Muslim majority nations scoring higher on these lineitems than certain Muslim majority nations.

By establishing a methodology that demonstrates which states havemaximally succeeded on the ground in establishing “Islamic ends,” theSharia Index Project hopes to shift the discourse away from a demographic-or institution-based definition of an Islamic state to showing which institu-tional forms have best succeeded in achieving said ends and why. Byprod-ucts of this will be detailing the points of similarity and difference betweenWestern and Islamic understandings of law and justice and improving thenature of the discourse on Sharia between the West and the Muslim world.

In this paper, where my intent is to show how the American Declara-tion of Independence, Bill of Rights, and Constitution are consistent withIslamic jurisprudence, I shall first have to tell the reader the story of:

• The objectives of the Sharia Index Project, the rationale for ratingnations according to Sharia compliancy, the coherence of the termIslamic State, recent trends in shifting from an institutional- to anends-based definition of the term Islamic State, and some terms thathave been used to differentiate non-Islamic States from IslamicStates;

• Challenges in developing a coherent theory of Sharia compliance ongovernance. This includes the issue of political power and how thoseholding political power have shaped the discourse on the subject, theconcept of human rights and comparing the rise of human rights inrecent Western discourse to the Islamic concept of human rights;

• How an Islamic human rights doctrine might be established; and• How the American Declaration of Independence, Constitution, and

Bill of Rights are consistent with Islamic jurisprudential thought.

I. INTRODUCTION AND GENERAL REMARKS . . . . . . . . . . . . . . . . . . . 455A. Objectives of the Sharia Index Project . . . . . . . . . . . . . . . . . 455B. Is There a Rationale for a Sharia-Compliant Rating of

States?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456C. The Term “Islamic State” (dawla islamiyya) . . . . . . . . . . . 458D. Is an Islamic State a Coherent Idea? . . . . . . . . . . . . . . . . . . 461

governments meet these standards. This takes the burden of grading off the shoulders of the schol-ars and makes it as objective as possible.


E. Twentieth-Century Political Dynamics in the West . . . . . 463F. Modern Trends in Shifting from an Institutional

Definition to an Ends Definition that Describes MuslimAspirations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466

G. Revisiting the Dar al-Islam/Dar al-Harb Divide . . . . . . . . 468II. CHALLENGES IN DEVELOPING A COHERENT THEORY OF

SHARIA-COMPLIANCY ON GOVERNANCE . . . . . . . . . . . . . . . . . . . . 470A. Speaking to Power—And Why This Work Must Be Led

by Muslim Scholars in the West . . . . . . . . . . . . . . . . . . . . . . 470B. The Epistemological Historicity of Human Rights

Discourses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473C. Was Man Made for the Sharia, or the Sharia Made for

Man? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476D. The Universal Islamic Declaration of Human Rights

(UIDHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479E. Why Muslim Scholars Are Conflicted About the

Universal Islamic Declaration of Human Rights(UIDHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481

F. Non-Muslim Critiques of Islamic Human RightsDiscourses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483

III. HOW MIGHT AN ISLAMIC HUMAN RIGHTS DOCTRINE BE

ESTABLISHED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485A. The Arabic Verb-Based Language and Thought Versus

the Western Noun-Based Language and Thought . . . . . . . 486B. Comparing the Western and Islamic Formal Analytic

Structures of a Human Right . . . . . . . . . . . . . . . . . . . . . . . . . . 488C. An Islamic Narrative of Rights . . . . . . . . . . . . . . . . . . . . . . . 491

IV. HOW THE AMERICAN DECLARATION OF INDEPENDENCE,CONSTITUTION AND BILL OF RIGHTS ARE CONSISTENT WITH

ISLAMIC JURISPRUDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497A. On the Form of Government that Could Protect Human

Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501B. The American Democracy’s Creed, and the

Constitutional Limits to the Government’s Sovereignty . 506Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508

I. INTRODUCTION AND GENERAL REMARKS

A. Objectives of the Sharia Index Project

Among the objectives of this project are:1. To inform the public both in the Muslim world and in the West—

especially decision makers in the United States and abroad—andclarify their understanding on the nuances of what an “IslamicState” substantively means.


2. To decouple the nomenclature “Islamic State” from a demographicdefinition and anchor it to one based on criteria of governance.

3. To posit and test the possibility of establishing a broad consensuson an ends-driven definition of Islamic governance, and to differen-tiate that from an institution-driven definition.

4. To clarify the relationships between institutions of religion and ofpolitical power according to Islamic law.

5. To make the discourse on “religious” versus “secular” states moresober and dispassionate, and to delineate and nuance differencesand overlaps.

6. To provide Muslim societies with an informed and objective basison how they define and grade themselves as “Islamic,” and howthey might improve themselves on that scale.

7. To reduce Western nations’ fear of “Islamic States.” We believethat United States policy vis-a-vis Muslim nations would be wellserved, and more coherent, if it revealed a nuanced understandingof the role of religion, especially Islam, in Muslim societies. TheUnited States has historically had intimate relations with pivotallyoil-important Saudi Arabia and Gulf countries, is engaged in criticalnegotiations with Iran on its nuclear aspirations and support ofHizbollah, and has sought to broker relations between its nuclearally Pakistan and its nuclear neighbor India (and other geopoliti-cally important neighbors). The United States is, moreover, sup-porting democratic aspirations in Egypt, and involved withTurkey’s desire to enter the European Union (“E.U.”), despite con-comitant European angst about allowing an Islamic country to bepart of Europe—not to mention European perplexity on how to dealwith its Islamic immigrant and second-generation communities.

The United States is involved in nation-building in Iraq, Af-ghanistan, and indirectly in Palestine. In all of these areas, we sug-gest that an understanding of the role of religion—and especiallyIslam—and its intersections with politics and policies, is vital. Thisproject aims to make an important contribution in shedding light,and reducing the heat, on this important subject.

8. In discussions with scholars of other religions, this project may cat-alyze similar analyses on what a “Jewish,” “Christian,” or “Hindu”state might look like. (The sense of many was that they may not bethat different in the ethical sense.)

B. Is There a Rationale for a Sharia-Compliant Rating of States?

The Qur’anic rationale for rating nations is provided by Qur’an 3:110,which asserts to the Prophet’s companions, “You are the best community[khayra ummah or nation] raised from humankind: you enjoin the good [or


the right] and forbid evil and believe in God.”4 Muslim scholars point outthat God calls the Prophet’s companions the “best community” not merelybecause they were the Prophet’s companions and practiced the liturgy andthe Prophet’s rituals of worship (the class of actions called ‘ibadat). Rather,they were the “best community” because they were his companions inpartnering with the Prophetic impulse to uphold and proactively implementthe principles of enjoining the right, forbidding the wrong, and believing inGod. If they only believed in God, but neither enjoined right nor forbadewrong, this would not have sufficed to qualify them as the “bestcommunity.”5

University of Virginia Professor Abdulaziz Sachedina adds that thisverse “is constitutive of God’s purpose of creating an ethical order responsi-ble for ‘commanding the good and forbidding the evil,’ and does not con-nect the status of being the best with a self-righteous presumption of theneed to convert others; rather, it ascribes the status of the best to a commu-nity charged with the responsibility of instituting good and preventingevil.”6 This verse is just as concerned with the ethical norms of man-manrelations as it is with enhancing man-God relations. Four verses later, theQur’an nuances this point: “Of the People of the Book [Jews and Chris-tians] there is an upright community [ummah] who . . . believe in God andthe Last Day, enjoin the good and forbid evil and vie with one another ingood deeds.”7

This Qur’anic text arguably provides Muslims with some Divine crite-ria on how to determine the “best community or nation.” It also suggeststhat among Jews and Christians there are communities that meet these crite-ria; thus, it is possible for followers of the Prophet Muhammad’s form ofworship to slip away from the “best nation” position and lose it to commu-nities that, while not formally “Islamic,” are technically so by virtue offulfilling this verse’s requirements. This can happen because it is possibleto score well in one or more of the above four categories and poorly inothers. For example, a community may believe in God while at the sametime neither enjoining the good nor forbidding evil, and find massive socialwrongdoing its norm, vying with each other in evil deeds.

Moreover, the Divine imperative in 3:114, and repeated in severalother Qur’anic instances,8 implicitly suggests competition, and thus the ex-

4. QUR’AN 3:110.5. QUR’AN 48–54 differentiates between mere “submitters” (muslim), “believers” (mu’mins)

and in the well-known hadith of Gabriel, “doers of good” (muhsins), thus establishing at an indi-vidual level grades of religious accomplishment. Other verses, such as 3, mention, among degreesof striving laysu sawaa’a and those who go out in jihad are a‘zamu darajatan min alladhinaqa‘aduu. Thus grading both between good and bad, and between the good and the better is part ofthe Qur’anic worldview and supported by ahadith that speak of grades of heaven and of hell.

6. SACHEDINA, supra note 1, at 135.7. QUR’AN 3:113–14 (emphasis added).8. See QUR’AN 21:90, 23:61.


istence of a rating. Some textual examples are: “compete with one anotherin good works”9—a command addressed to those with different goals, notonly to Muslims but to members of other religions—and “race [one an-other] towards forgiveness from your Lord and a heaven whose extent isthat of the heaven and earth.”10 Competition and racing toward a set ofDivine rewards clearly implies the existence of a Divine scorecard. TheSharia Index Project seeks to explore and probe how to establish this score-card from an Islamic jurisprudential point of view.

C. The Term “Islamic State” (dawla islamiyya)

A review of the semantic uses of the term “Islamic State”11 in themedia, in common parlance, and in literature on the subject shows that this

9. See QUR’AN 3:113–14 (emphasis added). QUR’AN 2:148 reads: “To each is a goal towhich God turns him; then strive together (as in a race) towards all that is good.” QUR’AN 5:51reads: “For every one of you [Jews, Christians, Muslims] We have appointed a law and a way.Had God willed, He would have made you one community; but that [He has not done in orderthat] He may try you in what has come to you.” Sachedina argues that this verse also entails aDivine imperative for religious pluralism, and “can serve to overcome discrimination based onexclusive religious claims and entitlements and can provide humankind the vision of a globalcommunity bound together to achieve the common good for all citizens of the world.”SACHEDINA, supra note 1, at 134; see also id. at 63.

10. QUR’AN 57:21 (emphasis added).11. Before we proceed in our discussion of an Islamic State, an important observation needs

to be made on the nomenclature “Islamic” and its semantic uses in the general and juridicalaspects.

(a) The term “Islamic” has been generally used—especially by non-Muslims as well as in-creasingly by Muslims—to signify all that Muslims do, or that is of Muslims, so much that termslike “Islamic Civilization,” “Islamic Studies,” “Islamic art,” “Islamic food,” “Islamic architec-ture,” “Islamic literature,” “Islamic history,” and more recently “Islamic fundamentalism,” “Is-lamism,” “Islamic terrorism,” and thus including our subject “Islamic State,” are terms often usedto signify entities and activities that are not always logically or popularly regarded as religious ineither the Muslim or non-Muslim ways of looking at things, and which in fact are more accuratelysecular, un-Islamic or even anti-Islamic, or explicable in terms of local customs unrelated to Is-lam. While many of these activities would not generally be labeled “Christian,” “Buddhist,” ordescribed by a religious adjective in other religious traditions and contexts, Muslims have boughtinto this nomenclature, which has in some contexts created a self-fulfilling prophecy and a viciousand occasionally pernicious cycle of wanting to “Islamize” that which cannot coherently be “Is-lamized.” Generally people assume that Islamic in this context means that it is in accordance withIslamic theology or law, i.e., “Sharia-compliant,” or even required by it.

(b) “Islamic law” approximates the above use in the field of law; it includes the sum total of“what Muslims juridically did.” Juridically, the term “Islamic” is also often used in commonparlance to mean “approved by, consistent with, or required by Islamic law.” It is necessary tobear in mind, while all of Qur’anic law is Islamic, not all of Islamic law is Qur’anic. Islamic law isused to describe more than just Qur’anic laws and ordinances and those from the Sunnah. Ittherefore includes the legal writings, opinions, precedents, judgments, rulings and growing bodyof consensus among jurists, and the legislation of succeeding rulers after the death of the ProphetMuhammad. It also includes pre-Islamic customs and laws which are not inconsistent withQur’anic and Hadith injunctions that populations continued to practice once they became liturgi-cally Muslim; this happened because Islamic jurists regarded custom (‘adah or ‘urf) as a subsidi-ary source of law when not in conflict with Qur’an or Sunnah.

Where matters are made more complex to the lay Muslim—Muslim jurists agreed that cer-tain differences of opinion are deemed equally valid, thus “equally Islamic,” which led to the rise


term is used in two senses: one is demographic (meaning a state with amajority population practicing the faith of Islam), the second is vis-a-visgovernance (generally understood to mean a state governed by Sharia Law).While most Islamic legal scholars will agree with the second sense in prin-ciple, a wide divergence of opinion exists on how this should be practicallyaccomplished, let alone best accomplished.

This should not be surprising, for the question of how to accomplish astate governed by Sharia law has historically cleaved the Islamic commu-nity, and eventually split Islam into the Sunni and Shia sects. This was thequestion that gave rise to the Kharijis, who after first having followed thefourth Caliph Ali, seceded from him—one of whom eventually assassinatedhim—because they believed he was not vigorous enough in his campaignagainst Muawiyah.12 Passions became so aroused in response to this ques-tion that it was politically difficult and dangerous for some to make theiropinions public. Many people felt it would be safer to “punt” and defer thequestion to God, who would decide this question in the hereafter—thoseholding this position becoming known as the “deferrers”—the murji’a. It isnot surprising, therefore, that various views of rule and theories on the Cali-phate arose, nor should it be surprising that this question continues to pas-sionately divide contemporary Islamic scholars and lay Muslims.

In the early days of Islamic history, the focus of the question wasabout how to ensure right governance. The Shia position centered on whohad the inherent right to rule, i.e., the inherent legitimacy of the ruler. Theassumption was that the right “who” would rule in accordance with divineordinances; in other words, the right “who” would guarantee rule bySharia.13 Their opposition to the Umayyad, and later the Abbasid autocraticmonarchies that clung to power, were about placing the right “who” in aposition of power. The political power of autocratic monarchs forced theSunni juristic tradition to evolve to a position that accepted the ruler’s legit-imacy as long as he ruled in accordance with divine ordinances, i.e., theShariah, even if he obtained the power to rule illegitimately.

of five major schools of law between the Sunni and Shia, and a few minor ones. The non-special-ist is rarely able to discern when a difference of opinion among contemporary scholars lies withinthe boundary of “differences of legal opinion equally Islamically valid” and when a position is“outside the pale of what is Islamically valid,” even in the domain of matters of worship that havebeen established centuries ago. The poor lay reader is therefore completely lost when reading thewritings of modern Islamic legal scholars and watching their sometimes passionate disagreementson the subject of an Islamic state; as to whether these are differences within the domain of what isIslamically valid, or whether one position is beyond the pale “Islamically speaking,” notwith-standing the accusation of one scholar that the other indeed is Islamically “off the wall.” Wetherefore urge Muslim jurists—for the sake of the ummah—to help the lay Muslim delineate thisboundary.

12. Muawiyah was the governor of Damascus who challenged the fourth Caliph Ali (theProphet’s cousin and son-in-law) upon the death of the third Caliph Uthman, until which time theCaliphate’s capital was based in Medina.

13. This gave rise to the Shia theory of the Imamate, the Righteous Imams.


Spanning the history of the Muslim peoples until the contemporaryscene, what governance by Sharia law means—or ought to mean—in prac-tice, is and has been somewhat unclear. It has been interpreted institution-ally in a variety of ways:

• A state governed by descendants of the Prophet.14

• A state ruled by Muslim theologians (more accurately jurists,faqihs)—what we may call in English a theocracy (more accuratelya “jurist-ocracy,” implying thereby and establishing the means of therule of law).15

• A state that is governed along the lines of the historical politicaltheory and practice of Muslim rulers. This has been interpreted in anumber of ways—most see in historical precedent a “Caliphate,”whereas others see a democracy.

• A state that is liberal and democratic. The argument given by expo-nents of democracy is based less on democratic institutional forms aspart of Islamic historical precedent, than it is based on the argumentthat it provides the best chances of achieving the justice and humandignity that the Prophet and his closest companions sought topreserve.

The historical political theory approach begins chronologically by ana-lyzing the Prophet’s “Medina Constitution,” which was established betweenthe Prophet and his followers on his emigration from Mecca with the Jew-ish tribes and Arab polytheist tribes of Medina. Next it layers the precedentsof the Orthodox Caliphs onto the ideal of rule by a “Successor to theProphet” (Caliph). It draws from these historical formulations to developeither a theory of Caliphal rule, or alternately a theory of what would grantlegitimacy to such rule.

Parallel and adjacent to the political theory approach is the juridicalapproach that examines and emphasizes the collective writings of Islamicjurists over the past fourteen centuries regarding this subject. In light of theprecedent of the Prophet and the Orthodox Caliphs, many of these juristsworked to build a counterculture—an “opposition party”—to the court cul-ture of many Caliphs and protest movements that sought to “transform thecorrupt political order of their day and make it submit to [what they recog-

14. This is the historical Shia position, further nuanced by a definition that means rule by thedescendants of Husayn son of Ali. We note that a Sharifian (Prophet’s descendants) dynasty ofrule prevailed in the Maghrib (i.e., the area of Morocco) that was descended through the line ofHasan, son of Ali; but this latter was not considered Shia in the jurisprudential sense because theyfollowed one of the Sunni schools of jurisprudence (Maliki). We also note that the modern IslamicRepublic of Iran, a Shia State, has had Rafsanjani, a non-descendant of the Prophet as their headof State. Therefore, the original political intent of the Shia impulse has been overtaken and “dis-solved” by the on-the-ground political reality. See infra note 15.

15. It is interesting that Ayatollah Khomeini established in Shia Iran the notion of vilayeti-faqih, rule by the jurisprudent, a notion that arguably sidesteps rule by descendants of the Prophet,and brings this a big step closer to the Sunni model.


nized as being in accord with] God’s will.”16 Such studies attempt to extractfrom these precedents principles that may be considered “Islamic,” sincethey flow out of the Prophet’s own normative practice (Sunnah) and of hisclosest companions. These companions, by consensus of Islamic scholarlyopinion, understood the importance of the Qur’an and the Sunnah betterthan any future generations.17

Lay readers are bound to be confounded by the strong disagreementexisting among scholars concerning which hermeneutic, or approach totheir identical conclusions, is superior, even among those who believe in thesame institutional forms. If the end result is the same, why quibble, letalone have heated arguments about how we get there?18

D. Is an Islamic State a Coherent Idea?

Some argue that the notion of an “Islamic State” is incoherent, evenillegitimate, because it stands in opposition to the more rigorous and funda-mental idea of the ummah—the supra-national community of believers,19

and because the modern nation-state did not flow out of traditional Islamicinstitutional norms.20 In spite of this being the intuitive sense of most Mus-

16. RAUF, WHAT’S RIGHT WITH ISLAM, supra note 1, at 188 (quoting KAREN ARMSTRONG,ISLAM: A SHORT HISTORY 46 (2000)).

17. What complicates the historical approach is that it is possible to find precedents for arange of possibilities. Since 656 CE, Muslims were ruled by dynastic and often autocratic monar-chies—even though the rulers called themselves “Caliphs”—until the Ottoman Caliphate whichended in 1924. And just as it was possible to have atheistic fascism (e.g., the Soviet Union) andatheistic liberal democratic societies (e.g., France); Christian fascist societies and Christian liberaldemocratic societies; we believe it is possible to provide an Islamic veneer to any form of govern-ment. It is therefore possible, in our opinion, to create an “Islamic” fascist society, an “Islamic”autocracy, an “Islamic” meritocracy, an “Islamic” monarchy, an “Islamic” republic, and an “Is-lamic” liberal or illiberal democracy. For just as there are always lawyers who argue oppositesides of a case before the Supreme Court of the United States, each side sincerely believing itsposition is constitutional (a situation generally possible within any system of jurisprudence) it isand has always been possible for any government to find Islamic jurists who would argue for theSharia-compliancy of one form of institutional governance over another. During the Nasser re-gime in the 1960s, books were written on how socialism flowed from Islamic thought and ideals.

18. In the United States, for example, while Muqtedar Khan and Khaled Abou El Fadl bothbelieve in democracy as the best institutional form, Khan argues that the Medina Constitutionestablishes the institutional precedent for an Islamic democratic polity. El Fadl passionately dis-agrees with Khan and argues that a juridical and theological approach provides a more “Islami-cally authentic” basis and argument for democracy. EL FADL, supra note 1, at 66; see also, id. at112–15. The latter approach is the hermeneutic used by Abdulaziz Sachedina in arguing fromQur’anic texts for a democratic pluralism rooted in Islamic texts and jurisprudence. SACHEDINA,supra note 1.

19. International Crisis Group, supra note 1, at 6.20. The Indian Muslim thinker Abu’l Ala al-Mawdudi was opposed to the Muslim national-

ism of Ali Jinnah, the founder of Pakistan, arguing that nationalism implied sovereignty of thepeople, whereas the true Islamic State was founded on the principle that sovereignty belongs toGod (al-hakimiyya li-llah). In contextualizing Mawdudi’s thoughts, we note that he was opposedto the adoration (al-‘ubudiyya) of political leaders and parties in God’s place that dominated polit-ical thought in the first half of the twentieth century, and that he viewed religious nationalismwithin the construct of a nation-state as a vehicle for, if not in itself a new form of, jahiliyya.


lims, Islamic political parties in much of the Muslim world have acceptedthe nation-state as their primary framework. Thus, they have de facto legiti-mized the idea of the nation-state, and defined the term Islamic State [dawlaislamiyya] to mean a nation-state where “governance is according to theprinciples of Sharia.” Jurists, therefore, must respond to this on-the-groundreality; either they must condemn the “Islamic nation-state” as an invalidconcept under Islamic law (as the Indian Muslim thinker Abu’l Ala al-Mawdudi felt), or they must find a way to give the phrase “Islamic State” acoherent definition within an ummah-wide framework. For the sake of bothMuslim and non-Muslim communities, they need to do this as rapidly aspossible—to find a way to generate the broadest consensus possible acrossthe spectrum of intra-Islamic sectarian jurists on points of agreement, andamplify that message.21

It should also be noted that Islamic political movements are shiftingaway from a definite institutional conception of “the Islamic State” that iscontrasted with existing states in the Muslim world and promoted at thelatter’s expense. Indeed, Islamic political movements have begun to ac-knowledge that scriptural texts (the Qur’an, the sunna, and the hadith) donot contain a clear definition of the “Islamic State” and hence it can, ac-cordingly, take different institutional forms. At the same time, recognitionof the scriptural limitations in this respect has led these movements to dropthe simplistic slogans, such as “al-Islam huwa al-hall” (“Islam is the solu-tion”) and “al-Qur’an dusturna” (“the Qur’an is our Constitution”), whichthey previously favored. The movements also dissociate themselves fromthe conceptions of fundamentalist Islamic movements inclined to invoke theoriginal Islamic community of first century AH/seventh century CE Arabiaas the political model to emulate.

This occurs, in part, because these slogans need to be examined in thecontext of nation-building, and also because of the diversity of Islamic ac-tivist political forms in the current Muslim world. For example, in SaudiArabia, there is a strong partnership between a monarchy and a clergy; inthe Islamic Republic of Iran, a theocratic rule of the jurisprudent (vilayeti-faqih) prevails; in Jordan, the Islamic Action Front (the party established bythe Jordanian Muslim Brothers) has accepted and even defended theHashemite monarchy as legitimate in Islamic terms; in Morocco, the Justice

Comparing this to Jack Donnelly’s presentation of three models of international human rights,Mawdudi, and Muslims generally, believe more deeply in what Donnelly posits as the “cosmopol-itan” model which starts with individuals as part of a truly global community (the ummah), andwho therefore regard states as “the problem.” JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS

28 (1998).21. For example, if as mentioned above El Fadl and Khan agree that a democracy is the best

institutional form from an “Islamic point of view” but passionately disagree on how they arrive atthat decision, the former conclusion (their point of agreement) ought to be amplified more than thelatter point (namely how they arrived at that conclusion) for the benefit of positive political reformin the Muslim world.


and Development Party (PJD) has similarly made its “royalist” credentialsvery clear in proclaiming its recognition of the king’s status as “the com-mander of the faithful” (amir al-mu’minin); in “republican” Egypt, mean-while, the Muslim Brothers have endorsed the Islamic credentials not onlyof the state but also of the government, and in Turkey the Justice and De-velopment Party (AKP), currently in government, has similarly made clearits acceptance (and thus in effect its endorsement) of both the secularist andthe republican aspects of the Kemalist constitution.22 In ethnically pluralistMalaysia, where ethnic Malays are constitutionally Muslim and the UnitedMalay National Organization (UMNO) runs the government, former PrimeMinister Abdullah Badawi (2003–2009) ran and won election by the widesthistorical margin on a platform of “Progressive (or Civilizational) Islam”(Islam hadari). Not surprisingly, American and Western Muslim legalscholars have generally preferred and argued in favor of a democraticpolity.

E. Twentieth-Century Political Dynamics in the West

In the West, the nineteenth and twentieth centuries were marked by therise of an anti-religious secular humanism that ejected religiosity from thehallways and boardrooms of power. This coincided with the rise of Com-munism and its socialist ideas in Russia and Eastern Europe—ideas thatwere resonant in the United States through the depression era, and whichfurthered the antipathy to religion in Europe and populous regions of theFar East, which came under the influence of Communism and Socialism,such as in China and India respectively. While anti-religiosity was morewidespread in Europe than in the United States, Europe exerted a strongintellectual influence upon American intelligentsia, and European colonial-ism exerted powerful political influence upon the Muslim world and itsintelligentsia. This secularism affected the religious interpretations of lawsin American courts, and influenced the development of ideologies in theMuslim world.

From the second half of the nineteenth century through the first half ofthe twentieth century, Muslims desired—and attempted—to establish Is-lamic democratic regimes.23 The geopolitical realities of the twentieth cen-tury, namely the remnants of colonial military power succeeded by the ColdWar calculus, prevented this from happening. Instead, authoritarian regimesarose in the major intellectual capitals of the Islamic world: particularly inEgypt, Turkey, and Iran. These historically multi-cultural and multi-relig-ious societies were increasingly replaced by ethnic and religious national-

22. International Crisis Group, supra note 1, at 6.23. The Wafd party in Egypt attempted to establish a nascent democratic polity, and had on

its platform Egyptian Muslims, Copts, and Jews, expressing the religious diversity and multi-religious demographic of Egypt.


isms, such as Turkish and Arab, and Islamic nationalism (most notably inthe establishment of Pakistan). The most influential of these regimes eitherabolished or gutted political opposition parties and furthered a militant anti-religious secularism that spawned a militant fundamentalist reaction. West-ern powers tolerated regimes when they abused their own peoples’ humanrights, leading many Muslims to believe that the West wanted to humiliate,subjugate, and oppress the Muslim world, and that it was unconcerned withhuman rights abuses conducted by regimes friendly to the West.24

Europe also underwent changes in the first half of the twentieth cen-tury. From 1914 through 1945, the technological advances in warfare andnew post-Industrial Revolution socio-economic disruptions in human rela-tions precipitated the First World War. A decade later, a lengthy economicdepression caused starvation and human suffering on a historically unprece-dented scale. Then, Europe suffered in the Second World War from the lossof civilian and military human life of unprecedented magnitude, genocideof Jews, gypsies, and others deemed racially impure by the fascist Naziregime (the Holocaust), and from the invention of weapons of mass destruc-tion capable of destroying the whole human race.

World War II destroyed the European powers, and birthed two globalsuperpowers: the United States and Soviet Union—both seeking to prosely-tize their notions of societal constructs upon the whole world. Believing inthe superiority of their worldviews, they cooperated in some areas, and dis-agreed in others. They shared an egalitarian and secular worldview, and, notwanting to see the world self-destruct, established the United Nations(U.N.) from the ashes of the League of Nations. The United Nations’ firsttask was to establish its Universal Declaration of Human Rights (UDHR),25

24. This belief is sustained by the human rights abuses conducted in Guantanamo, AbuGhraib in Iraq, and Bagram Air Force Base in Afghanistan.

25. The Universal Declaration of Human Rights was prepared by the Commission on HumanRights of the Economic and Social Council (ECOSOC) of the United Nations. Eleanor Roosevelt,widow of President Franklin D. Roosevelt, niece of Theodore Roosevelt, and social activist,chaired the commission. We observe a resonance with her late husband’s “Four Freedoms Ad-dress” he delivered in his annual message to Congress on January 6, 1941. Clearly inspired by theideas and idealism of Wilson’s New Freedom and Teddy Roosevelt’s Square Deal, Rooseveltdeclared, “Just as our national policy in internal affairs has been based upon a decent respect forthe rights and the dignity of all our fellowmen within our gates, so our national policy in foreignaffairs has been based on a decent respect for the rights and dignity of all nations, large andsmall.” Franklin D. Roosevelt, 1941 State of the Union Address: Four Freedoms Address (Jan. 6,1941). In it he identified the four basic freedoms as follows:

• Freedom of speech and expression—everywhere in the world.• Freedom of every person to worship God in his own way—everywhere in the world.• Freedom from want, which, translated into world terms, means economic understandings

that will secure to every nation a healthy peacetime life for its inhabitants—everywhere inthe world.

• Freedom from fear, which, translated into world terms, means a worldwide reduction ofarmaments to such a point and in such a thorough fashion that no nation will be in aposition to commit an act of physical aggression against any neighbor—everywhere in theworld.


declared to both legitimize the United Nations26 and to prevent the horrorsand abuses that a generation of Europeans had suffered through. The com-bined political influence of the United States and the Soviet Union rapidlyeroded the historical division of humanity into social classes of royal, noble,mercantile, feudal, and serf. Paradoxically, the then European colonies uti-lized the UDHR, both within the framework of the United Nations andwithout, to agitate for political independence and freedom from their colo-nial masters. Thus, a Western secular human rights doctrine resulted, whichmaintained the ethical dimensions of the Abrahamic religious doctrine, butcompletely divested it of any metaphysical attachment to its religious ori-gins. Human rights emanating from this viewpoint were deemed “univer-sal” and “inalienable” just because people are human.

Egalitarian doctrines took root and gained force even in far easternsocieties whose traditional religious and societal doctrines embraced une-qual classes of human beings (such as India and Japan where a caste systemregarded the lowest caste levels of human life as dispensable). It is remarka-ble that secular humanists and atheist communists have succeeded in mak-ing a religion out of the Abrahamic Ethic’s second commandment (to loveyour fellow humans), absent the first commandment (to love God), and thatthey have been able to globalize this “religion” via international politicalactivity.

The Universal Islamic Declaration of Human Rights (UIDHR) of 1981parallels the UDHR in that it was made in reaction to the abuses Muslimpopulations underwent. In its own words, “It is unfortunate that humanrights are being trampled upon with impunity in many countries of theworld, including some Muslim countries.”27 Unlike (as we shall detail be-low) the American Declaration of Independence, the UIDHR did not—andcould not—address the issue of governmental power, any more than to re-mind governments ruling over Muslim populations to fulfill their duties totheir populations and aver that “human rights in Islam are an integral part ofthe overall Islamic order and it is obligatory on all Muslim governmentsand organs of society to implement them in letter and in spirit within theframework of that order.”28

The end of the Cold War in 1989 created a new global geopoliticallandscape, but the need for a revision of Western policies towards the Is-lamic world was not felt until 9/11. Even the Iranian revolution in 1979against the Shah and the rise of Islamic militancy in much of the Muslimworld targeted against their own regimes did little to make Western policy-

26. Marnia Lazreg, Human Rights, State and Ideology: An Historical Perspective, in HUMAN

RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES 37–39 (Adamantia Pollis & Peter Schwabeds., 1979).

27. Universal Islamic Declaration of Human Rights, Foreward, para. 4.28. Id. at para. 3.


makers aware of their need to address the issues of concern to the Islamicmasses.

F. Modern Trends in Shifting from an Institutional Definition to anEnds Definition that Describes Muslim Aspirations

In order to create political space for themselves, contemporary Islamicpolitical movements have explicitly broken away from fundamentalist per-spectives. Abandoning the revolutionary utopian project of dawla islamiyyain the strictly institutional sense has led them to emphasize other themes—what I call “ends”—most notably the demand for justice (al-’adala) andfreedom (al-hurriyya). In articulating these demands, these movementshave insisted that the key to their realization is the consecration by the stateof Islamic law, the Sharia. This reliance on Sharia, however, while remain-ing a central feature of Islamist political agendas and rhetoric, is itself nowqualified by two key elements.

First, the recognition of the need for Muslims to “live in harmony withtheir time” (instead of trying to recreate the original Islamic community ofseventh-century Medina), has led these movements to stress the need forijtihad, the intellectual effort of interpretation, to establish how the princi-ples embodied in the Sharia may be translated into actual legislation in con-temporary Muslim countries.29 Second, recognition of the need for ijtihadhas led to the recognition of the need for deliberation, and thus acceptanceof the role of deliberative instances representative of the community,namely representative assemblies and parliaments, in the law-making pro-cess. This evolution in political thinking has taken Islamic political move-ments away from theocratic conceptions of the Muslim polity, from the(originally Khariji) cry in which sovereignty (al-hakimiyya) is conceived asbelonging to God alone (al-hakimiyya—or al-hukm—li-Llah), to more dem-ocratic conceptions, which recognize that sovereignty belongs to thepeople.30

Therein lies a potential problem. As El Fadl points out, “Muslim juristshave argued that law made by a sovereign monarch is illegitimate because itsubstitutes human authority for God’s sovereignty. But law made by sover-eign citizens faces the same problem of legitimacy,”31 leading to the next

29. In this way, the Islamist political movements have come to reject literalist readings ofscripture and have reverted to the perspectives of the “Islamic-modernist” movement of the latenineteenth and early twentieth centuries, whose leading theorist, the Egyptian Mohammed Abduh(1849–1905), was preoccupied precisely by the problem of adapting Islamic law to take accountof modern conditions.

30. See International Crisis Group, Islamism, Violence and Reform in Algeria, 2004 MIDDLE

E. REP. 29.31. EL FADL, supra note 1, at 4. The nuanced point here is that the substitution of the abso-

lute sovereign will of the citizens over the absolute sovereign will of a monarch both theoreticallyoverride the absolute sovereign will of God—this, Muslim jurists say, is incorrect. What is “Is-lamically correct” is that the worldly sovereign power, whether it resides in a monarchy or a


question: Who interprets God’s law? This is partially an issue of limitingpower, and is partially an issue of safeguarding the intentions of the Sharia.Otherwise, the mechanisms of the Sharia become used by the power struc-ture to undermine and thwart the intentions of the Sharia.32

For the reasons given above, I believe that a coherent “ends” approachthat embraces a set of values and Islamic human rights doctrine that flowsout of both the intent of the Sharia and the core Islamic worldview is thecontemporary demand. This is where the determination of an “IslamicState” could currently use the most traction: there is a need for Muslimjurists to come up with an ijtihad road map, list of issues and methodol-ogy—in effect a set of criteria—that helps a lay audience of opinion leadersand those in decision-making positions objectively judge what best deter-mines an “Islamic” or “Sharia-compliant” governance.

This type of ijtihad would revive spirituality, intellectuality, and ethics,based on the two commandments common to the three Abrahamic faiths: alove of God and a simultaneous love of our fellow human beings. The resultwill be an ijtihad that:

1. Revives classical Islam’s historic pluralism—an understanding thatcreated space for at least four major Sunni and several Shia schoolsof legal interpretation to coexist, and recognized them as equallyvalid in God’s eyes. Sunni-Shia tensions and the uphill nature ofnation-building in Iraq and Afghanistan are concrete demonstra-tions of this particular challenge.

2. Recreates a nuanced understanding of the difference between sepa-ration of mosque and state (which Professor Ali Mazrui has elo-quently demonstrated is “Islamically do-able”) and between

democracy, must recognize that it needs to be delimited by God as absolute sovereign. This is themeaning of “acting in accordance with Sharia”; it is that in an Islamic State, the worldly ruler(monarch or citizens) cannot be whimsical and must abide by a set of (Shar’i) principles and fulfillcertain objectives that flow from God. We believe that in spite of what some modern Americansmay believe, the authors of the American Declaration addressed this very issue by declaring therights of citizens as God-given (in the language of the American Declaration of Independence,“endowed by the Creator with certain inalienable rights”) and again emphasized the point with thephrase “a nation under God.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasisadded). See infra Part IV for further discussion of the American democracy.

32. El Fadl illustrates this point as follows:

Islamist models, whether in Iran, Saudi Arabia, or Pakistan, have endowed the state withlegislative power over the divine law. For instance, the claim of precautionary measures(blocking the means) [sadd adh-dhari‘a] is used in Saudi Arabia to justify a wide rangeof restrictive laws against women, including the prohibition against driving cars. This isa relatively novel invention in Islamic state practices and in many instances amounts tothe use of Shari‘ah to undermine Shari‘ah. The intrusive modern state invokes Shari‘ahin passing laws that create an oppressive condition—a condition that itself is contrary tothe principles of justice under Shari‘ah.

EL FADL, supra note 1, at 15 (emphasis added).


religion and politics (which he suggests may not be “Islamically do-able”).33

3. Returns to what Mazrui has called Islam’s authentic spirit of eternalmodernism, defined as a continuous creative synthesis. This in-volves learning from others, letting others learn from Islam, andmaintaining Islam’s own core of authenticity.34

G. Revisiting the Dar al-Islam/Dar al-Harb Divide

Over the last two centuries, the classical legal differentiation betweenthe Dar al-Islam (Abode of Islam) and the Dar al-Harb or Dar al-Kufr(Abode of War or of Unbelief) has undergone a revision among leadingMuslim thinkers. This is partly the result of the increasing presence of Mus-lim communities living under non-Muslim rule, giving rise to the notionthat these countries were, at the very least, to be considered as Dar al-Amanor Dar al-’Ahd (Abode of Security or of Treaty).

For example, when Bosnia was brought under Austro-Hungarian ruleat the end of the nineteenth century, the Bosnian mufti Azapagic resistedthe idea that Bosnian Muslims were obliged to emigrate to Istanbul, a posi-tion which Rashid Rida supported. Rida stressed that “Hijra is not an indi-vidual religious incumbency to be performed by those who are able to carryout their duties in a manner safe from any attempt to compel them to aban-don their religion or prevent them from performing and acting in accor-dance with their religious rites.”35

33. See Ali A. Mazrui & Albert Schweitzer, Islam Between Secular Modernism and CivilSociety, AM. SOC’Y FOR MUSLIM ADVANCEMENT, http://www.asmasociety.org/perspectives/article_12.html (last visited Nov. 19, 2010).

34. In the words of Professor Ali Mazrui:The Muslim world went modernist long before the West did—but then the Muslimworld relapsed back into pre-modernization . . . . What made Islam at the time compati-ble with the spirit of modernity was Islam’s own spirit of creative synthesis. Islam wasprepared to learn philosophy from the Greeks, architecture from the Persians, mathemat-ics from the Indians, jurisprudence from the Romans—and to synthesize what was bor-rowed with Islam’s own core values. That was a modern spirit . . . . Islam was born pre-modern, but receptive to modernism. Then it went modernist in the heyday of its civili-zation. Then Islam relapsed into pre-modernism, where it has been stuck to the presentday.

Id. Mazrui adds, however, thatin the political culture of Muslim Senegal we see signs of the historical proposition thatIslam went modernist long before the Western world did. Most of the Muslim worldthen relapsed into a premodernist culture of legalistic lethargy and social conservatism.But even today elements of modernist Islam can be found in unexpected places—frompoverty-stricken Bangladesh ready to follow women in hijab as Prime Ministers to post-colonial Senegalese Muslims ready to elect a Christian [Leopold Senghor, a RomanCatholic] for executive President.

Id.35. Rida made these statements in a pamphlet he published in 1909 in his journal concerning

the situation of Bosnian Muslims. Rashid Rida, Al-hijra wa hukm muslimi al-Busna fiha, AL-MANAR, 1909; see also Wasif Shadid & Sjoerd van Koningsveld, Loyalty to a non-Muslim Gov-ernment: An Analysis of Islamic Normative Discussions and of the Views of Some Contemporary


Muslim leaders, like al-Afghani, Muhammad ‘Abduh, and RashidRida, saw Western Civilization as a model for Muslims to emulate. Theseviews became popular at the end of the nineteenth century, and advancedthe notion that Western countries were no longer the Dar al-Harb. Theseviews also laid the groundwork for later Muslim scholars and Muslim lead-ers in the West to regard the concepts of Dar al-Islam and Dar al-Harb asoutmoded and irrelevant. Seeking to reinterpret Islamic tradition in light ofthe prevailing conditions of the modern age, modern scholars like ShaykhFaysal Mawlawi, advisor of the Sunni High Court in Beirut, pointed outthat defining the House of Islam and House of Unbelief is problematic inour day. If the criterion for defining a country belonging to the “Territory ofIslam” is that Muslims are free to practice their religious ceremonies andobservances, then what can be said about the “many non-Muslim countrieswhere Muslims live safely and practice their religious ceremonies, some-times with greater freedom than in some ‘countries of the Muslims’?”36

The Moroccan scholar ‘Abd al-’Aziz ibn al-Siddıq goes even furtherthan Mawlawi in reviving the Shafi’i doctrine that says that the Dar al-Islam exists wherever a Muslim is able to practice the major religious ritesand observances. Ibn al-Siddıq notes that Muslims in Europe and Americahave created numerous religious institutions, including mosques andschools, and enjoy great liberty,

including the preaching of Islam and the conversion of Europeansand Americans to Islam[. H]e concludes that “Europe andAmerica, by virtue of this fact, have become Islamic countries ful-filling all the Islamic characteristics by which a resident livingthere becomes the resident of an Islamic country in accordancewith the terminology of the legal scholars of Islam.”37

The safety of those who live in Europe (including Muslims) is also evidentin the fact that Muslims travel to Europe “as refugees from those who claimto be Muslims” because they are “afraid to profess their religious convic-tions in their own countries.”38

The primary intellectual leader of the Tunisian Islamist Nahda-move-ment, Rached al-Ghannouchi, also adopted Ibn al-Siddıq’s vision:

In 1989, at the occasion of a congress of the Union of IslamicOrganizations in France (UOIF), al-Ghannouchi declared thatFrance had become Dar al-Islam. The leading circles of the UOIFadopted this view which was to replace the doctrine, previouslyadhered to, that France was merely part of Dar al-cAhd. This view

Islamists, in POLITICAL PARTICIPATION AND IDENTITIES OF MUSLIMS IN NON-MUSLIM STATES 84,90 (Wasif Shadid & Sjoerd van Koningsveld eds., 1996) (quoting this part of Rida’s pamphlet).

36. Shadid & van Koningsveld, supra note 35, at 97.37. Id. at 98 (quoting CCABD AL-CAZIZ IBN MUHAMMAD IBN AL-SIDDIQ, HUKM AL-IQAMA BI-

BILAD AL-KUFFAR WA BAYAN WUJUBIHA FI BACD AL-AHWAL 31, 61 (1985)).

38. Id.


was confirmed in 1991 by the Committee for the Reflection aboutIslam in France (CORIF), when it proclaimed in a circular letterof February 1991 that France had become Dar al-Islam due to thefact that deceased Muslims could be buried in its territory in spe-cial sections of cemeteries destined for Muslims.39

II. CHALLENGES IN DEVELOPING A COHERENT THEORY OF SHARIA-COMPLIANCY ON GOVERNANCE

A. Speaking to Power—And Why This Work Must Be Led by MuslimScholars in the West

In developing an intellectually (structurally and analytically) coherenttheory of Sharia-compliant ideas on governance centered around rights(both human and Divine rights), Duke University Professor Ebrahim Moosapoints out that Muslim scholars have to be prepared to engage in politicalthought in the widest sense of the word. Often this means scholars have tocontend with being at odds with the forces of political power. “In manyMuslim countries,” Moosa points out, “like Egypt, Syria, Saudi Arabia,Iraq, Iran, Bangladesh, Pakistan and Tunisia, intellectuals are subjected toharassment by traditionalist and fundamentalist quarters alike as well as bygovernments for their critical study of religion and for opinions that do notmeet with approval from the religious establishment.”40

Sorbonne Professor Mohammed Arkoun laments the absence ofgenuinely independent, creative work on the Islamic tradition . . .in the Arab world. The close ties between nationalist, authorita-rian governments who are adamant about using Islam for theirown purposes or are preoccupied with fending off militant Is-lamist movements . . . makes genuine scholarship impossible. Thecapacity of social science to generate the liberating truth aboutIslam depends on a political atmosphere conducive to academicfreedom and scientific discovery. Rethinking Islam depends upon

39. Id. (internal citations omitted).40. Moosa, Dilemma, supra note 1, at 185–86. Arguably the most notable example of paying

a price for one’s integrity was what happened to eighty-year-old Grand Ayatollah Hussein AliMontazeri, once the heir apparent to the leadership of the 1979 Iranian Islamic revolution. He wasstripped from his title of Grand Ayatollah and placed under house arrest in 1997 (and released in2003 because of ill health) for criticizing the regime’s human rights abuses, for suggesting thatclerics should not interfere in government, for suggesting changes in the distribution of power,and that Ayatollah Khamenei should submit himself to popular elections, curtail his power, and beaccountable and open to public criticism for his actions.

Another example is Professor Abdolkarim Soroush, who once was a high-ranking ideologuein the Islamic Republic of Iran and was later appointed to the Advisory Council on the CulturalRevolution by Ayatollah Khomeini. ABDOLKARIM SOROUSH, REASON, FREEDOM, AND DEMOC-

RACY IN ISLAM xi (2000). He was fired from his job for criticizing “the theological, philosophical,and political underpinnings of the regime.” Id. In addition to being barred from teaching anddiscouraged from speaking in public, “[h]e [was] routinely threatened with assassination and[was] occasionally roughed up by organized gangs of extremists.” Id.


the freedom to think[,] . . . and thus, for now at least, it must bedone in the West;41

although, even there, Western Islamic scholars have not been immune fromrebuke.42

Arkoun depicts two additional fronts Western Muslim intellectualshave to fight on: one against social science as practiced by Orientalism in adisengaged, narrative, descriptive style; the other against the offensive/de-fensive apologia of Muslims who compensate for repeated attacks on the“authenticity” and the “identity” of the Islamic personality with dogmaticaffirmations and self-confirming discourse.43

Regarding the first, Muslim intellectuals must contribute to an evenmore fundamental diagnosis through the Islamic example, especially re-garding questions of ethics and politics: to expose “the blindspots, the fail-ings, the non sequiturs, the alienating constraints, [and] the recurrentweaknesses of modernity,”44 for “the West has not accepted the challengethat has arisen from within its own culture”45—despite a generalized crisisof the soul bequeathed by the end of Marxist eschatology.46 Critical voicesexpressing solidarity with the history of Muslims must constantly submit todemands that their arguments be more “objective,” more “neutral,” less“polemical,” and less engaged in recurrent forms of protest against theWest. Those who are aligned with Muslim peoples also find themselvessurrounded by a Western worldview that insists on maintaining its pressureon the rest of the world, and refuses to entertain external views.

Moosa emphasizes Muslim scholars’ concern that human rightsschemes are deployed by Western non-governmental organizations (NGOs).He believes that these human rights schemes are a weapon to subordinate,as well as to colonize lands, minds, and bodies47 (namely those who pointout that the models of Western thought are inadequate to current needs), orare perceived as a strategy of cultural domination from which Muslimsmust protect themselves. This point merits some attention. Writing in 1978,

41. ARKOUN, supra note 1, at xi.42. Professor Abdulaziz Sachedina avers:It took the crisis I faced with the Muslim religious establishment in 1998 to convince methat the time had come to state my firm belief in the Koranic notions of human dignityand the inalienable right to freedom of religion and conscience. Attempts were made tosilence me through a religious edict (fatwa) and to stop Muslim audiences in NorthAmerica from listening to my well-articulated plea for better inter-communal relation-ships through mutual tolerance, respect, and acceptance of the religious value in allworld religions.

SACHEDINA, supra note 1, at xi.43. ARKOUN, supra note 1, at 1–2.44. Id. at 119.45. Id. at 4.46. That modern science has banished from human consciousness the sense and sensibility of

the sacred is a subject most cogently addressed by writers of the perennial philosophy, who in-clude Rene Guenon, Frithjof Schuon, S.H. Nasr, and Charles le Gai Eaton among others.

47. Moosa, Poetics, supra note 1, at 205.


City University of New York Professor Marnia Lazreg suggested that “thedrive for fundamental human rights [was] primarily an ideological onemeant to legitimize the state structure of governments that supported it.”48

In a review of the historical circumstances in which the UDHR wasmade in 1948—the contextual historicity of the UDHR—Lazreg remindsthe reader that

fundamental human rights do become ideological when theycease to be viewed historically and are therefore detached fromthe sociopolitical and economic life situations of concrete individ-uals or groups. The ideological character of the 1948 Declarationand the prevailing drive for human rights on the part of the U.S.leadership operate[d] on two levels: First, precedence [was] im-plicitly given to human as opposed to citizen rights, thereby in-corporating all human beings across nations and cultures into anabstract universal community [(an analog of the Islamic globalummah)] of which the U.S. government [was] the champion. Sec-ond, the “declaring” of such fundamental rights [had] the effect of“informing” individuals throughout the non-Western world of ab-stract rights that may not be implemented locally and [were] in-creasingly encountering obstacles in Western societiesthemselves.49

Lazreg also critiqued the U.S. policy of using human rights as a tool ofinternational power politics, of applying principles selectively, and of sup-porting regimes despite evidence of human rights violations, such as Iranand Morocco because of their support of U.S. geopolitical positions.50 Hermost important observation, for our purpose of developing an Islamic doc-trine of human rights, is that “if the ultimate goal . . . is to free [a state’s]citizens from deprivation, then there are ways of going about this task thatare equally or more efficient than those proposed by Western powers.”51

The pursuit of the idea of God for Muslims is an equally valid alternative, atleast at the theoretical level.

This discussion recalls Arkoun’s reminder—that a critical and histori-cal re-examination of our belief systems, whether about human rights orabout the actual contents of the Holy Scriptures, is still an urgent and indis-pensable intellectual task. This undertaking offers an excellent opportunityto bolster religious and non-religious thought in general, by forcing it torecognize that our beliefs, our religious teachings, and revelation are subjectto historicity.

48. Lazreg, supra note 26, at 32–33.49. Id. at 34.50. Id. at 39–40.51. Id. at 40.


B. The Epistemological Historicity of Human Rights Discourses

Moosa reminds us of this point. Thinking and deliberating on humanrights (including women’s rights) in the modern and contemporary contextrequires a careful analysis of some of the more complex and foundationalpresumptions in Muslim legal and ethical philosophy. It also requires anawareness of post-Empire Islam, where Muslims have (at least in practice)abandoned the idea of a universal political empire (like the Caliphate rulingover an ummah) in favor of the nation-state, but have not yet made thenecessary epistemological shift. What we see as the current Muslim crisis,namely the idea that “the critical hermeneutics of rival epistemologies” isbattling “to establish their relevance to the moral compass of society,” ex-ists, because, as Moosa posits, the knowledge that needs to be employed indefining the crisis is lacking.52 This void led to genres of questions basedupon different paradigms—and specifically Western paradigms—ofthought; some may now wonder, “Does Islam need to undergo its own ‘ref-ormation’ or ‘enlightenment,’ as Christianity underwent in the West?”

While it may be more accurate to say that the West underwent theEnlightenment than it is to suggest that “Christianity underwent the En-lightenment,” Arkoun points out that the West53 escaped the clutches ofChristian religious dogma by invoking Enlightenment thought—the progen-itor of the Western articulation of human rights schemes—as the oppositeof and replacement for Christian mythology.54 At the same time that West-ern reason performed this “liberating” critique, it simultaneously fell backinto a nostalgic celebration of the putative origins of its civilization, espe-cially the Greek polis and the first Christian communities, which were forWestern reason the equivalents of the Muslims’ “Pious Elders” (as-salaf as-salih). Peculiarly, Arkoun points out, Western scholars moved beyond pre-Enlightenment thought not by eliminating myth, but by integrating a differ-ent myth into their cognitive activity of reason. Every belief set, religious orotherwise, has its “accumulated symbolic capital carried and maintained,”and no form of expression, religious or otherwise, can be detached from itsaccumulated symbolic capital, nor can the forms of religious expression bedetached from symbolic and artistic creativity.55

52. Moosa, Poetics, supra note 1, at 7.

53. We exclude America from this, for as we will see below, we believe that America did notgo as far as Europe in eliminating religion and religious thought from its societal worldview.

54. ARKOUN, supra note 1, at 1–2.55. Id. at 119. We believe that the ethics of secular humanism, and therefore what is called

secular human rights, in fact flows out of the second of the two major religious commandments inthe Abrahamic faiths—stated separately and de-linked from the first—as part of the West’s accu-mulated symbolic capital. The two commandments being: to love the Lord the One God with allof one’s heart, mind, soul and strength, and to love one’s neighbor—i.e., all of humanity—as oneloves oneself. Mark 12:33 (New International Version). From the contemplative tradition, thesecond commandment is the first contemporaneously restated as “love the image of God in all six


Moosa addresses the subject of symbolic creativity by reminding theMuslim reader that “[j]urisprudence, like architecture, is a form of art andhas to do with creation.”56 Classical Muslim jurists, including ash-Shafii,ash-Shatibi, al-Ghazali, and al-Tufi, among others, collectively created asystem of juridical and legal thought. It behooves modern Muslim juristsand scholars to recall this “memory of creativity” of a “hermeneutics” nar-rative and fold it into their contemporary creative efforts in expanding thehermeneutics envelope.57 This is a necessary step in engaging the inheritedlegacy of Muslim thought as we move forward.

More than their modern counterparts, Moosa reminds us that scholarsof Muslim antiquity were extraordinarily aware that during the Prophet’stime and in subsequent eras, there was a politics of interpretation at work.This made scholars aware of the need to interpret the canonical sourceswithin their own social contexts, without being shackled to the history andculture—and in particular the politics—of the original founding moment.What they actually executed was a creative act of intellection that “ex-tracted” from the canonical sources a supra-historical and supra-contextuallegal theory. It provided coherence for the moral and epistemologicalframework of Muslim legal and ethical thought on one hand, and on theother provided a post-hoc rationalization and justification for the legal prac-tices that were already in circulation in the post-Prophetic period.58

billion of the world’s inhabitants,” or to submerge the self (ego) in the alter Self and alter selves,or to see the Divine “I” both in oneself and in others.

56. Moosa, Poetics, supra note 1, at 2.57. Id.58. An analogy from the physical sciences may be helpful to the lay reader on this point.

When scientists study physics, for example, they study the observable physical world, and byobservation they notice that the varieties of physical forms obey certain patterns—such as the lawsof conservation of energy and momentum in physical interactions. Although they did not createthe physical world of forms, of time, space, and matter—God the Creator did—the science ofphysics is a human perception and understanding of that reality. Scientific laws are not “given” tous by God but “discovered” or “unveiled” by humans; they consist of the human attempt to dis-cover and express patterns of natural laws in human language and formulas. The sum of theselaws, as a body of science, has to be logically consistent. And as time goes on, earlier beliefsabout these laws stand to be corrected as scientific knowledge, tested by experiments in realsituations, advances. Physicists’ knowledge is by definition incomplete and in some instancesincorrect, but over time as more and more physicists deepen their research and discuss amongthemselves the results of their studies, they weed out incorrect understandings. Their base ofcorrect or firm knowledge grows and expands.

Over years, physicists may argue over many issues. Crises develop when new discoveriesshow the inadequacy of old models, which worked in certain dimensions, such as the discoveriesat the end of the nineteenth century that could not be explained by Newtonian physics, and that ledto the rise of relativity theory (dealing with physics at speeds approximating the speed of light)and quantum physics (dealing with the physics of sub-atomic particles) during the first half of thetwentieth century. It was necessary to show that these theories were consistent with and equivalentto Newtonian physics at low speeds and large masses.

Thus, the body of scientific knowledge grows and in time a growing consensus developsamong scientists as differences of opinion get ironed out. Applying the principles we learn fromphysics, we develop a technology that is useful in advancing the quality of our lives. In addition tohelping us understand God’s creation, by applying our understanding of the laws or science of


For example, in the Hijaz at the time of Shafi’i (d. 204/820), the term“Sunna” did not exclusively mean the precedents of the Prophet but wasunderstood to include accepted precedents in general, equivalent to the or-ganic and embodied practices of successive generations of Muslims beyondthe precedents of the Prophet and the four Orthodox caliphs. Shafi’i wasuncomfortable with this evolving idea of Sunna as being the living traditionof the community; it appeared logically incoherent and a potential slipperyslope. He therefore gave precedence to the Sunna of the Prophet as thesecond source of law, second only to the Qur’an, and standing above thepraxis of those who came after the Prophet. Since his time and down to our

physics, we can “work with God,” so to speak, to invent machines and technology that are usefulto us. When we do this, we are not really overcoming or denying physical reality; we are enhanc-ing the quality of our life with our knowledge and understanding of physical laws.

Usul al-fiqh is analogous to the science of physics above in that the Shari‘a is God-given viaa series of injunctions, comprising prescriptions and prohibitions embodied in the Qur’an andexpanded/adumbrated by the Prophet’s precedents and rulings (the Sunna whose sayings are col-lected in the Hadith), for these two sources are respectively God-given and God-modified whenthe occasion warranted.

Jurists in later centuries began to examine this body of injunctions and prohibitions, includ-ing opinions and decisions made by the Prophet’s companions, most notably the second CaliphUmar b. al-Khattab and the fourth Caliph Al b. Abi Talib. They sought to “discover” underlyingprinciples and laws of the Shari‘a to develop a logically consistent science of the Shari‘a; thisstudy became known as usul al-fiqh. It includes the philosophy, theory, understanding, rationale,and impulse of the Shari‘a. Just like physicists in the above analogy or any other class of scien-tists, the scholars of fiqh, known as fuqaha’ (singular faqih), had differences of opinion on matterssome of which are of greater, and some of lesser, consequence to the average Muslim. This isbecause jurists’ knowledge is incomplete and in some instances incorrect (just like scientists) butalso because there is often more than one correct answer, even a plurality, based on the Qur’anicverse 29:69, which reads: “Walladhina jahadu fina lanahdiyannahum subulana; wa innallaha la-ma‘a-l-muhsinin,” which means: “And those who strive in Our (Cause),—We will certainly guidethem to Our Paths: for verily God is with those who do right.” QUR’AN 29:69. The scholars haveinterpreted this verse to mean that there is on some issues more than one way to approach God, allequally valid and acceptable to God. Also, the hadith that “whoever does ijtihad and gives a rightjudgment will have two rewards; but if he errs in his judgment, he will have earned one reward,”Muslim, Sahih, V, 131, shows that God values sincere effort, that sincere effort is in itself valua-ble and that jurists engaged in this process of ijtihad received a reward even when wrong as longas they are sincere. Differences of opinion occurred and still do, but, in time, after centuries ofinteraction, a growing consensus developed, and the growing science of usul al-fiqh became in-creasingly accepted by Muslim scholars (‘ulama’ singular ‘alim) as a valuable science.

By understanding this science, we can apply it to situations—some of which may be new—tofind answers to questions that, although not originally addressed directly in the Qur’an andHadith, are consistent with the primary laws and principles of the Shari‘a. The value of under-standing the reasoning behind the Shari‘a becomes particularly evident when it enables us, in newcircumstances and when faced with modern dilemmas, to apply our reasoning to arrive at a com-fortably correct decision. The decision may not be unique, but contemporary Muslims should wellremember that Muslim jurists recognized the possibility of differing decisions deemed equallylegitimate and, in their accepting of the different schools of law, created the ideological and juridi-cal space for such differences to occur and to flourish.

The challenge of our time is not dissimilar to that faced by physicists at the end of thenineteenth century. The job at hand is to expand the principles of usul al-fiqh so that they not onlyapply in a relevant way to the twenty-first century global Islamic ummah but that, when projectedto the classical contexts of time and place, can also be shown to be consistent with the classicalunderstanding of fiqh.


day, Shafi’i’s idea of Sunna as being exclusively the practice of the Prophethas dominated.59

To provide posterity with a coherent, interpretive framework, intellec-tuals sought to engineer models of Muslim legal hermeneutics that werecoherent and contextually appropriate to their times—and, we must empha-size, to contexts that were in fact hybrids of various experiences and influ-ences. In doing so, they shaped the subsequent direction of Islamic legalthought.

C. Was Man Made for the Sharia, or the Sharia Made for Man?

The tension among jurists, today and in medieval times, centered onhow to regard the relationship between the canonical text and the believingMuslim. For some, the texts enjoyed priority over the Muslim as the “legalsubject”; for other jurists, starting with the Caliph Umar through theHanbali jurist Najm ad-Din al-Tufi (d. 716/1316), the believer is the legalsubject of the law. Umar’s decisions conflate with a host of jurists’ writingsleading up to Tufi’s nearly 700 years later. The decisions culminate in theidea that public interest, or the common good (maslaha), was the operativemeta-purpose of the revealed law, and that all the Qur’anic textual ordi-nances and Prophetic injunctions were “coagulations” of maslaha in thecontexts of revelation. The interest of the believer, therefore, stands aboveand before the law, and not vice versa; in several instances Umar suspendedtextual ordinances in favor of a decision he made,60 arguing that the coreobjective of all Sharia laws was the same: to avoid harm and promote thecommon good. This argument is reminiscent of Jesus’s announcement that“[t]he Sabbath [and thus the law] was made for man, not man for the Sab-bath [Law].”61

Thus, when the context differs from the context of revelation, the ju-rist’s role is to identify and determine the original maslaha and “re-coagu-late” it into his new context. Religion is about human ethics, both towardGod and toward Man, and religious law is not about fixing eternally what“once was” or “now is” the common good, but it is about “the continuousbecoming of the eternal common good.”62

59. As a partial counterpoise to this “fixing” of the Sunnah that de-links it from the continu-ing evolving praxis of the community is the Shia notion that the live (contemporary) jurisprudentcan in fact override the fatwas of his predecessors, thus giving life to the notion of an evolvingpraxis of the community.

60. For examples of this, see Moosa, Poetics, supra note 1, at 12–14, and RAUF, ISLAM: ASACRED LAW, supra note 1, at 76–78.

61. Mark 2:27.62. Tufi’s point of view, cited in Moosa, Poetics, supra note 1, at 22–23. This opens the

discussion into the issue of gnosis, of spiritual discernment that comprises the eternal and timelesscontent of every Prophetic impulse; an opening into a fresh “receiving” or “radiation” from Di-vine inspiration.


The Maliki jurist from Granada Abu Ishaq al-Shatibi (d. 790/1388)subscribed to this view, promulgated by the Shafi’i jurist al-’Izz ibn Abd as-Salam (d. 660/1261) in the words:

All obligations refer to the interests of God’s creatures in thisworld and the next. God is not in need of people’s worship, nor isHe benefited by the obedience of those who obey, nor is Heharmed by the disobedience of those who disobey.63

The majority of jurists accepted that the Sharia’s meta-purpose of mas-laha meant the promotion of human interests (masalih al-’ibad). Assertingthat laws were only instituted for the benefit of people in this world and thenext, and because laws are only the means of achieving God’s aims andintentions, the laws themselves hold no intrinsic value. If, occasionally, thestrict application of the law compromises the aims of the Sharia, then thelaw can be set aside or modified so that God’s intentions may be fulfilled.

Jurists adduced this point from the Qur’an itself. In the “vertical” God-man dimension of religious acts of worship, these acts are never ends inthemselves but means to the greater end, namely remembrance of God(dhikrullah).64 If and when these means are performed without their in-tended goals and content of divine remembrance, they are deemed void andineffective, at best, and at worst a major sin—defined as an offense againstGod. Means—including acts of worship—are therefore sanctified or ac-cursed by the degree to which we respectively embed in them remembranceof their proper intent or thwart them by embedding in them contrarianends.65

Accepting, then, the view that all Sharia injunctions are “coagulativeinstances” of the meta-purpose of the public good (maslaha), Shatibi’sschema is that all of the Sharia laws—and their maslaha content—radiateinto and manifest in five subject areas and at three degrees of essentiality ornecessity. The six subject areas that all of Sharia laws are intended to pro-tect and further are: life; dignity or honor (‘ird); religion; family (lineage orprogeny); property; and mind (mental well-being and intellect) at either themost necessary level (darura), at a lesser level of need (haja) or at the levelof adornment or beautification (tahsin, i.e., not necessary or needed).

The importance of life, for example, is indicated by Qur’anic passagesemphasizing the importance of life and condemning those who take a lifewithout right,66 by the magnitude of the Shar’i punishment for murder, and

63. Qawa‘id al-Ahkam fi masalih al-anam (Cairo, 1934), vol. II, 70.64. Remembrance of God trumps (literally, “is greater than”) prayer, avers QUR’AN 29:45.65. Prayer, for example, is a major obligation; yet God issues a severe warning to those who

pray ostentatiously, “[t]o be seen,” the vitiating clause being “neglectful of [the purpose of] theirprayers,” who pray yet hinder helpful action to others. QUR’AN 107:1–7.

66. See, e.g., QUR’AN 5:35 (“On that account: We ordained for the Children of Israel that ifany one slew a person—unless it be for murder or for spreading mischief in the land—it would beas if he slew the whole people: and if any one saved a life, it would be as if he saved the life of thewhole people.”).


by the compensation for unintentional manslaughter. The importance offamily, progeny, and clarity of lineage is given on one hand by the Sharia’surging marriage upon reaching puberty, granting men the right to marrymore than one wife, granting women the right to divorce for lack of sexualgratification, but on the other hand establishing severe penalties for adul-tery. The recognition of material well-being is proven by the importance ofzakah (charity and tax paid on income and assets to the Treasury to helptake care of the poor), and in modern times through employment or publicwelfare to assure a minimum standard of food, clothing, and shelter; whilethe importance of property rights is indicated by the Sharia’s severe penaltyon theft. These maqasid (ends, aims, or objectives) can be thought of asgeneral human rights, on which a broad consensus of Islamic jurists agreesthat proper governance should protect, provide for, and further.67

God protects these aims on Judgment Day, when He calls every personto account, and determines how humanity has either honored or violated therights of God and the rights of creation—including people and animals—down to “an atom’s weight” of good or evil done.68 God, as SupremeJudge, will determine every human being’s ultimate and eternal dispositionon Judgment Day (yawm ad-din). Moreover, according to Islamic juristictradition, “[t]he rights [or claims] of human beings are not forgiven by God[even on Judgment Day] unless the human being concerned forgives themfirst, and the claims for such rights are not dismissed [by God] unless theyare dismissed by the person concerned.”69 The magnitude of Judgment Day,and the reality that all beings’ rights will be honored and compensated forby the Supreme and Absolute Being is the source of the notion of universal-ity and inalienability of this understanding of Islamic human rights. Thissensibility is additionally implanted by God in our very nature (fitrah),wherein God’s presence as the immanent (al-Batin) lies.70 The Qur’an andthe Sunnah moreover reveal the equality of humankind and reject any pref-erential treatment accorded to race, ethnicity, or tribalism. In other words,individual rights—everyone’s rights, including animals—are so importantto God that the raison d’etre of Judgment Day is to ensure absolute justicewhen all claims based on justice are fully and completely settled.

67. Comparing these to the inalienable human rights of the American Declaration of Inde-pendence, we see in common life and property (in the original draft, later changed to pursuit ofhappiness). THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

68. QUR’AN 99:7–8. A hadith speaks of a woman who tortured a cat until it died and for thatwas rewarded with hell, while a prostitute was forgiven and rewarded with paradise for havinggiven a thirsty dog water from a well. Thus, even animals have rights, which humans shall beresponsible for having denied or granted. From these hadiths, we note that God acts on behalf ofthese creatures to exact their right or claim against the wrongdoer and rewards the right-doer forhis act.

69. EL FADL, supra note 1, at 26 (quoting the Maliki jurist Ibn al-‘Arabi).70. “We are nearer to him [humankind] than (his) jugular vein,” says the QUR’AN 50:16.


Abou El Fadl believes that the juristic tradition reduced the fivemaqasid to technical objectives, but notes that “the broad values assertedcould serve as a foundation for a systematic theory of individual rights inthe modern age.”71 One contributing factor (but not the only reason) whythe classical jurists describe these as aims of actions rather than rights isbecause they operated under a verb-paradigm of language and thought,rather than a noun-paradigm (explained further below).

The above considerations are among “the difficulties in trying to ex-plain the Islamic past to contemporary Muslims” that Moosa laments;which “is to disabuse them of a misconception that the past [referring to thesituation that the classical jurists found themselves contending with] wasperfect and untainted and [in all respects was] therefore a model worthy ofimitation.”72 Lacunae in the imagination of contemporary Muslims thatneed filling (in addition to that mentioned above) include: 1) an admissionthat the past developed as—and is—a hybrid; 2) a recognition that earlyMuslim jurists admitted with great candor that issues of language theory,rhetoric, and hermeneutics were implicated in the understanding of revela-tion; 3) that jurists in the pre-modern examples of Ghazali and Tufi—in-cluding Caliph Umar as primus inter pares in this category of “jurist”(among Sunni jurists as our caveat)—were not unwilling to “engage” thecanonical texts to “re-coagulate divine intent”; 4) that subtle epistemologi-cal and hermeneutical transformations have always taken place in Muslimthought in dealing with the primary sources; and, 5) that the modern experi-ence has fundamentally changed our notions of self and society from therole and meaning of these concepts in pre-modern society.

Understanding these pieces of hermeneutical history equips us, andprovides necessary tools in helping us move forward, to ensure that we donot detach ourselves from the symbolic and artistic creativity of Islamicthought, but rather that we continue in the tradition of al-Shafi’i, ash-Sha-tibi, al-Ghazali, and al-Tufi, and continue to build upon their work.

D. The Universal Islamic Declaration of Human Rights (UIDHR)

At a United Nations Educational, Scientific and Cultural Organization(UNESCO) meeting in Paris on September 19, 1981, Salem Azzam, Secre-tary General of the Islamic Council of London, put forth a Universal Is-lamic Declaration of Human Rights.73

Its foreword reads as follows: Islam gave to mankind an ideal code of human rights fourteen

centuries ago. These rights aim at conferring honour and dignity

71. EL FADL, supra note 1, at 24; see also id. at 41 n.27.72. Moosa, Poetics, supra note 1, at 40.73. SALEM AZZAM, UNIVERSAL ISLAMIC DECLARATION OF HUMAN RIGHTS 1 (Islamic Council

1981) [hereinafter UIDHR].


on mankind and eliminating exploitation, oppression and injus-tice. Human rights in Islam are firmly rooted in the belief thatGod, and God alone, is the Law Giver and the Source of allhuman rights. Due to their Divine origin, no ruler, government,assembly or authority can curtail or violate in any way the humanrights conferred by God, nor can they be surrendered.

Human rights in Islam are an integral part of the overall Is-lamic order and it is obligatory on all Muslim governments andorgans of society to implement them in letter and in spirit withinthe framework of that order.

It is unfortunate that human rights are being trampled uponwith impunity in many countries of the world, including someMuslim countries. Such violations are a matter of serious concernand are arousing the conscience of more and more peoplethroughout the world.

I sincerely hope that this Declaration of Human Rights willgive a powerful impetus to the Muslim peoples to stand firm anddefend resolutely and courageously the rights conferred on themby God.

This Declaration of Human Rights is the second fundamentaldocument proclaimed by the Islamic Council to mark the begin-ning of the 15th Century of the Islamic era, the first being theUniversal Islamic Declaration announced at the InternationalConference on The Prophet Muhammad (peace and blessings beupon him) and his Message, held in London from 12 to 15 April1980.

The Universal Islamic Declaration of Human Rights is basedon the Qur’an and the Sunnah and has been compiled by eminentMuslim scholars, jurists and representatives of Islamic move-ments and thought. May God reward them all for their efforts andguide us along the right path.

Paris 21 Dhul Qaidah 140119th September 1981Salem Azzam, Secretary General74

The UIDHR identifies twenty-three rights, which are enumerated in itstwenty-three articles:

I Right to LifeII Right to Freedom

III Right to Equality and Prohibition Against ImpermissibleDiscrimination

IV Right to JusticeV Right to Fair Trial

VI Right to Protection Against Abuse of Power

74. Id.


VII Right to Protection Against TortureVIII Right to Protection of Honour And Reputation

IX Right to AsylumX Rights of Minorities

XI Right and Obligation to Participate in the Conduct andManagement of Public Affairs

XII Right to Freedom of Belief, Thought and SpeechXIII Right to Freedom of ReligionXIV Right to Free AssociationXV The Economic Order and the Rights Evolving Therefrom

XVI Right to Protection of PropertyXVII Status and Dignity of Workers

XVIII Right to Social SecurityXIX Right to Found a Family and Related MattersXX Right of Married Women

XXI Right to EducationXXII Right of Privacy

XXIII Right to Freedom of Movement and Residence75

E. Why Muslim Scholars Are Conflicted About the Universal IslamicDeclaration of Human Rights (UIDHR)

As a Muslim, Mohammed Arkoun agrees that the virtue of this decla-ration is that it expresses the convictions, thoughts, and demands that con-temporary Muslims are beginning to embrace. He points out that noreferences were made to the canonic corpus of Shi’i Hadith, which wouldhave made it more “Islamically universal,” although the effort to “cloaksuch precious rights as religious freedom, freedom of association, freedomof thought, and freedom of travel in the full authority of the Islamic tradi-tion is not a negligible accomplishment.”76 The political value of such adocument is in creating a legal arsenal useful in bringing about positivechange in the Muslim world, and thus Arkoun endorses the utility of findingauthorities within the religious tradition who would be willing “to conse-crate rights that need to be taught and defended in the oppressive politicalcontexts unfortunately so widespread in today’s world.”77

As a powerful illustration of this, Arkoun cites the instance where ju-rists tried, for example in Algeria, to form a league for human rights toprotect citizens. The state felt that it was under attack and retaliated byrefusing to grant permission to organize; it prosecuted the instigators andsolicited the formation of a competing association to seize the initiative inthis domain without threatening the establishment. “At that moment,” headds, “the Islamic Declaration of Human Rights acquired its ideological andpsychological purpose: to reassure . . . believer-citizens by proclaiming that

75. Id.76. ARKOUN, supra note 1, at 107.77. Id.


God guaranteed rights; to undercut the [notion that these were merely] secu-lar demands of Western origin, and to re-establish confidence in the ‘mo-dernity’ of Islamic law and its universal and intangible character.”78

As an intellectual and a scholar, however, Arkoun finds the apologeticfunction and inspiration of the text “undeniable,” a discourse “based onmimetic overbidding [that] picks up the enunciations of Western declara-tions and confers upon them an Islamic origin”;79 and as a historian, he isshocked by an anachronism that projects modern concepts backward towardthe founding age of Islam. He reckons these apologetic streams of theologi-cal discourse coming from Islam (and as well when they emanate fromJudaism and Christianity) as strategies of self-justification and thus of re-ciprocal exclusion aimed at preserving a monopoly on control of revelationand all the symbolic capital that flows from it. Historical criticism is toooften missing, he asserts. Each side seeks to annex for itself the ethical-legal privileges and the ideological functions that—now more than ever—are attached to the bewitching theme of human rights, an error, he admits,that he has tried hard to avoid.

If someone of Arkoun’s intellectual rigor has had to try hard to keepfrom falling into this error, how can we not then empathize with socialactors for whom such considerations are either too abstruse or at best minorglosses, and are unable to resist the temptation of de-contextualizing ideas,beliefs, and doctrines advanced by their culture out of context? Arkoun de-plores how the Qur’an

has been ripped from its historical, linguistic, literary, and psy-chological contexts and then continually recontextualized in vari-ous cultures and according to the ideological needs of variousactors. This comment, though trivial for the historian, the linguist,and the anthropologist, is rejected by the theologian and under-stood poorly if at all by the ordinary believer.80

In his judgment, both Muslim liberals and Islamist movements havefallen into this same hermeneutic trap: The latter brought about an ideologi-cal hardening that rejects modernity and restores elements of the Sharia—utterly out of context and juxtaposed with legal codes borrowed from theWest—and from which the status of women suffered most, especially fromlegislation where intent diverges widely from effect. He therefore questionsthe hermeneutic propriety (not the political propriety) as less of an apolo-getic showing that Islam as a religion is open to the proclamation and de-fense of human rights, but rather that the Qur’an, the Word of God, definedthese rights at the beginning of the seventh century, well before Westernrevolutions.81

78. Id. at 110.79. Id. at 109.80. Id. at 5.81. Id. at 107–09.


Others share this general view. Ebrahim Moosa regards the work onhuman rights in Islamic thought as being

very mediocre: there is too often a haste to equate Muslim geneal-ogies of rights discourse to be the equivalent of liberal and secularrights. The Islamic Council of Europe’s human rights charter hasfallen into this trap; and so have the best of minds, like my friendRashid Ghannushi. Often there is a rhetorical flourish to makeequivalences whereas in fact such alignments are out of step withother aspects of even the most reform minded jurisprudence ofsay a Yusuf al-Qaradawi or say Allal al-Fasi, more than a halfcentury ago.82

F. Non-Muslim Critiques of Islamic Human Rights Discourses

One of the most pointed critiques of Islamic human rights claimscomes from University of Denver Professor Jack Donnelly. Lest he be mis-understood, he clearly points out that his critique is structural and analyti-cal rather than cultural and normative. He “readily agree[s] that the notionsof democracy, pluralism, and human rights are . . . in harmony with Islamicthought,”83 but argues that—despite the fact that Islam, like Christianity,can, and even ought to, be read as inherently compatible with those modernvalues—“traditionally, as with Christianity throughout most of its history,[Islamic legal thought] has not been read in that way.”84

Donnelly observes that the extensive, contemporary Arab or Muslimhuman rights literature almost invariably includes “a listing of the basicrights established by modern conventions and declarations, and . . . a seri-ous attempt to trace them back to Koranic texts”85 and takes as its standardargument the idea that “Islam has laid down some universal fundamentalrights for humanity as a whole, which are to be observed and respectedunder all circumstances . . . [as] fundamental rights for every man by virtueof his status as a human being.”86 Despite his belief in the compatibility ofIslamic thought and human rights, Donnelly views such assertions of histor-ical connection as “almost entirely baseless.”87

In this vein, Donnelly faults Muslims for citing scriptural passages ofdivine injunctions not to kill and to consider life inviolable, and equatingthat to the “right to protection of life.”88 In fact, he points out, the “right tojustice” is the duty of rulers to establish justice; the “right to freedom,” aduty not to enslave unjustly (narrower, even, than a general duty not to

82. Letter from Ebrahim Moosa to Feisal Abdul Rauf (Mar. 8, 2005) (on file with author).83. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 75 (Cornell

Univ. Press 2d ed. 2003) (internal quotation omitted).84. Id. at 74.85. Id. at 72.86. Id. (quoting ABUL A’LA MAWDUDI, HUMAN RIGHTS IN ISLAM (1976)).87. Id.88. Id.


enslave); “[e]conomic rights,” duties to help to provide for the needy; and“the purported ‘right to freedom of expression’ is actually an obligation tospeak the truth—that is, not even an obligation of others but an obligationof the alleged right-holder.”89 He observes that Abdul Aziz Said, MajidKhadduri, and others talk about precepts and values that either involverights-less duties of others “or are rights held because one has a certainlegal or spiritual status [(e.g., Muslim or non-Muslim, man or woman)], notsimply because one is a human being.”90

He agrees with Arkoun’s point above, however, thatrooting contemporary human rights ideas and practice in suchsources and resources will, for many Muslims, give them a depth,meaning, and impact they could not otherwise attain—just asrooting the rights of the Universal Declaration in the Bible givesthem a special meaning and force to many Christians.91

Donnelly admits that Muslims are “regularly and forcefully calledupon—by scripture, tradition, religious leaders, and ordinary believers—totreat others with respect and dignity. They are enjoined, in the strongestpossible terms, to pursue both personal well-being and social justice.”92 Butthese injunctions reflect “the values of the Universal Declaration of HumanRights, [and] they appeal to divine commands that establish duties, not(human) rights. The practices traditionally established to realize these val-ues simply did not include equal and inalienable rights held by all humanbeings.”93 What matters in Islam, he asserts, in the realm of “human rights”(i.e., human dignity) “[are duties] rather than rights, and the rights one doeshold are a consequence of one’s status or actions, not on the moral fact ofbeing human.”94

He urges his Muslim reader not to be deluded about the past “histori-cally dominant [legal] practice of most Muslim societies”; just as he chides“most Christian societies throughout most of [Christian] histor[y]” for hav-ing “treated non-Christians as inferior, despite the apparently universalisticegalitarianism of the New Testament.”95 Donnelly recognizes that “theHoly Qur’an certainly does not require Muslims to accept such legal ideasand their associated practices,” and is supportive of the “many contempo-rary Muslims who (entirely justifiably) reject such views.”96 This shouldnot, however, “obscure central elements of the meaning and importance ofhuman rights today.”97

89. Id. at 72–73.90. Id. at 73 (emphasis added).91. Id. at 75.92. Id. at 73.93. Id.94. Id. at 74.95. Id.96. Id.97. Id. at 76.


After critiquing human rights in the pre-modern West, traditional Af-rica, Confucian China, and the caste system of India, Donnelly says that“human rights are, among other things, means to realize human dignity.”98

It is simply not true, he asserts,that all peoples at all times have had human rights ideas and prac-tices, if by “human rights” we mean equal and inalienable para-mount moral rights held by all members of the species. Mosttraditional legal and political practices are not just human rightspractices dressed up in different clothing. And those who insistthat they are, whatever their intention may be, make an argumentthat not only can be, but also regularly has been used by repres-sive regimes to support denying their citizens internationally rec-ognized human rights.99

Donnelly favors (with Penna and Campbell)cross-cultural dialogue that “will allow the incorporation of non-Western symbolism into the international human rights discourse,and make support for human rights more powerful in non-West-ern societies.” But that dialogue must be based on a clear andaccurate understanding of the nature of internationally recognizedhuman rights and a reading of the historical record that can bearempirical scrutiny.100

The literature he critiqued (including that of Muslim writers on humanrights) is, he concludes, “theoretically muddled or historically inaccurate(and often both)”:101

Nothing is gained by confusing human rights with justice,fairness, limited government, or any other values or practices. . . .[H]uman rights will be threatened if we do not see that the humanrights approach to, say, fairness is very different from other ap-proaches. . . . Thus I continue to insist that the claims that I ad-dress in this chapter merit the most vigorous rebuttal.102

III. HOW MIGHT AN ISLAMIC HUMAN RIGHTS

DOCTRINE BE ESTABLISHED?

Catholic thinker Raimundo Pannikar says that “instead of trying totransliterate the concept of human rights into another culture,” which iswhat the above-mentioned critiques of Islamic human rights reveal, “weshould search for the homeomorphic equivalent for human rights in anotherculture.”103 If the meta-objective of “modern human rights is to protect and

98. Id. at 85.99. Id. at 87.

100. Id. (internal citation omitted).101. Id. at 87.102. Id.103. Moosa, Dilemma, supra note 1, at 207.


show respect for human dignity, then we” must investigate how (in ourcase) Islamic law satisfies that need.104 Where historically Muslims mayhave veered from this Islamic ideal, we need to demonstrate how Islamiclaw can be re-deployed to remedy this.

We believe that a supra-contextual analysis of the structural and para-digmatic differences between the modern Western concept of a human rightand the classic juridical Islamic concept of a human right will reveal a re-markable overlap—and arguably an identity—between them. The apparentdifference, as we will show, arises from the blending of several meanings inthe Western understanding.

Then we examine the substance of a right in each narrative. This, inour opinion, requires examining the contextual metaphysical and historicalnarratives that explain how the values or objectives of the rights aresourced, how they are selected, and, finally, what political enforcementmechanisms exist to enforce them. In doing so, we believe that a perspec-tive can be found from which parity exists between Donnelly’s Western andGhannushi’s Islamic understandings of a human right—an understandingthat makes us see that the differences are not as different as some assert,and are, in fact, bridgeable. Moosa suggests that while “secular humanrights and Islamic rights . . . are indeed conceptually different things[,] . . .contemporary Muslim thought may be able to produce a rights system . . .not dissimilar to secular human rights declarations in their outcomes.”105

Before proceeding, we wish to highlight two important differences thathave bearing on our discussion. The first difference is between the languageparadigms of Arabic and Western thought, which has arguably resulted inthe second difference, namely a “corporate” mental grid in Western think-ing about the nature of reality. Understanding these two differences willhelp bridge Islamic human rights and Western human rights discourses.

A. The Arabic Verb-Based Language and Thought Versus the WesternNoun-Based Language and Thought

A key difference between the Arabic verb-based language approachand the noun-based language approach of Greek and post-EnlightenmentWestern languages is that between the Semitic and Indo-European lan-guages. The late professor Wilfred Cantwell Smith, one time Head ofHarvard’s Center for the Study of World Religions, pointed out that in Se-mitic (and classical Japanese), verbs are primary:

Studying Arabic, a Semitic language, starts with studying verbsand their varieties. . . . The Indo-European languages, especiallyGreek, gave the noun a much higher rank, “so that ever since inWestern thought reality has tended to be conceived in terms of

104. Id.105. Id. at 187.


entities, while in the Old Testament [and the Qur’an], it is con-ceived primarily in terms of events.”106

The Qur’an, for example, speaks often of Jews and Christians, but neveronce does it mention the terms “Judaism” or “Christianity,” suggestingthat such nouns, although semantically sensible, are ontologically incoher-ent or unreal.107

The Qur’an and Sunnah utilize the Semitic verb-based language; theSharia’s “raw data” consists of a list of do’s and don’ts—analogous to anexpanded Ten Commandments—between ontologically real actors. Muslimjurists thought in a verb-based paradigm rather than a noun-based one; webelieve this contributed to their paradigm as starting from a frame of refer-ence of duties and obligations. They therefore described the maqasid of theSharia as objectives of laws governing human action within a narrative ofontological actors and the functional relationship between them—their re-spective status towards each other (God, the Caliph, Sultan, or Governorand the ruled; the judge and his judgment of others, parent-child, husband-wife, employer-employee, etc.).

106. RAUF, WHAT’S RIGHT WITH ISLAM, supra note 1, at 113 (quoting WILFRED CANTWELL

SMITH, THE MEANING AND END OF RELIGION (1962)). Smith additionally demonstrated that theuse of the terms Judaism, Christianity, and Islam to refer to systems of observances and beliefs—of an institutionalized historical tradition—is a modern one that did not appear until the seven-teenth century. Through a study of Muslim book titles through the centuries, he noticed that “sincethe latter part of the nineteenth century, there has demonstrably been a sudden and almost com-plete shift to a use of the term Islam to name a religion.” Id. at 114. Prior to that, it always meant“the act of submission,” as in Qur’an 49:17 where God commands the Prophet to inform theBedouin Arabs, “Don’t favor me with your islam [la tamunnu ‘alayya islamakum].” Similarly,being “Christian” until the sixteenth century meant being “Christ-like,” rather than being “aChristian,” i.e., a member of the “institution of Christianity.”

We believe this shift in language was also a result of the invention of the corporation (theChartered Company) and its impact upon language in post-sixteenth century Europe and the West,which resulted in the greater frequency of the “personification” of ideas and ascribing to them“action capacity.” That modern Muslims have bought into this language paradigm is indicated bytheir often asking, “What does Islam, the Quran, the Hadith say about something?” whereas classi-cal scholars of Islam would never use such language. They would ask, “What does God, or theProphet, say?” Today an English speaking imam in a sermon would say: “The Quran says suchand such” or “there is a hadith that says such and such.” An Arab speaker would never say that,for it would sound absurd to say qal al-qur’anu, or qala hadithun; he would say, instead: “God theExalted says in His Noble Book [qala-llahu ta‘ala fi kitabihi-l-karim] such and such” or “TheMessenger of God, peace and blessings be upon him, said in an authentic report [qala rasul ullahifi hadithin sahih] such and such.” God and the Prophet are speakers; the Qur’an and Hadith are“reports” of Divine and Prophetic speech respectively. The difference, though subtle, is huge—and often ignored—and we believe is of import in our discussion on human rights.

The Qur’an moreover refers to humans as “actions.” For example, Jesus Christ is called in4:171 as a (spoken) word of God (i.e., a Divine act) conveyed to Mary (kalimatu-hu alqaha ilamaryam). Also see 11:46, where God informs Noah that his son who drowned as a result ofrejecting Noah’s message “was a bad action” (inna-hu ‘amal-un ghayru salih-in).

107. Continuing the point made in our previous footnote, modern Westerners often ask, “Howmight we compare what Islam says versus what Christianity says?” on a particular issue. This isnot a coherent statement in classical Islamic language.


B. Comparing the Western and Islamic Formal Analytic Structures of aHuman Right

The Islamic juridical concept of an individual’s “right” starts with anexamination of how rights come into being—what we might call an “ontol-ogy” or “etiology” of rights. In this picture an individual’s right to some-thing (the right-holder) is the corollary of another’s duty to fulfill that right(the duty-bearer). For example, if Ann employs Bob for a task, Bob—uponagreeing to the employment—receives the “obligation” to complete thetask. Bob’s obligation in turn grants Ann the corollary “right” to demandBob’s work. Ann’s right, in the Islamic legal view, only “arises” as a claimif Bob does not fulfill his contractual obligation. Bob has a right to get paid;but this right does not “exist” as a claim until he completes the task, and,even when the right is available, is not “exercised” unless Ann fails in ful-filling her obligation to pay Bob; her “duty” to pay Bob arising upon Bob’scompletion of the task. Bob’s freely agreeing to take on the job is impor-tant; if Ann enslaved Bob, the rights narrative is substantially altered. Bothhave to be happy with the deal; they both have to find it adding to theirpleasure and satisfaction.

Bob’s right to get paid emerges from a contractual narrative that pro-vides the context to the claimed right; while his right to get paid is simulta-neous to, and is the existential corollary of, Ann’s failing her obligation topay him, they both are dependent on a prior action—Bob’s completing thejob. Bob’s failure to complete the job gives rise to Ann’s right to demandhis work, both of which emerged out of a prior action—namely Ann’s em-ploying Bob and Bob’s freely accepting to take on the job.

Our narrative of mutual rights and obligations started with Ann’s act ofemploying Bob. The only way we can start earlier in the narrative is toassert that Ann had an antecedent right to employ someone, which broughtabout the event of Ann’s seeking and finding Bob, and her employing Bobafter perhaps a negotiation, which in turn created the succeeding narrativeof mutual rights and obligations.

In this story so far, we see that rights are first and dependent on inter-action between two or more players. (It takes two to tango—otherwise theconcept of tango, and thus in our case a “right,” cannot even be said toexist, for a right is a claim against someone else). Second, rights “flow” outof antecedent actions. (If there is no prior agreement between Ann andBob, neither has an obligation towards, nor possesses a right against, theother—the specific right disappears.) Third, someone’s rights are alwaysthe flip side of another’s “obligations.” An obligation is either a self-im-posed or externally imposed imperative, a command to do (or not do) agiven action from the viewpoint of the actor of the action. From the view-point of the recipient of the action, the obligatory action is seen and exper-ienced as a “rightful claim” against the actor for his omission of obligation


or duty, or a “right” for short.108 Fourth, a storyline, or narrative, of causesexists that brings a respective right and obligation into being from a prioraction, which itself may be dependent on another right and obligation.

A contextual, contractual narrative, therefore, is the ontological sourcefor the simultaneous creation of the right and its corollary obligation.

The post-modern Western (secular humanist) notion of a fundamental,universal, and inalienable human right is that it is an entitlement that a per-son has just because he or she is human, and which flows out of the merefact of the person’s human-being-ness. It starts from a perspective thatposits a set of unwavering and generalizable (human) rights for each indi-vidual at all times that gives rise to obligatory actions from the duty-bear-ers. It allows the individual to make a claim against society, or the state, forits satisfaction, and generally ignores any contextual narrative prior to theexistence of the individual human being as irrelevant.

If that was all there was to the structural definition of the Westernconcept of a human right, it would be easier to correlate it to the Islamicstructural definition of a human right. The Western definition of humanrights, however, conflates several ideas as axiomatic:

• The object of the right (that which is to be enjoyed);• A set of conventionally agreed upon selected values that find their

expression in the determination of rights;• An implied (but unstated Biblical) narrative of what a human being

is (within an implied but not always expressed societal contract andnarrative of justice, mercy, etc.); and

• An implied political enforcement mechanism (a legal mechanismthat translates into power) by which the right may be exercised.109

This theory of human rights blends the above ideas. Thus, Donnelly isforced to make statements like:

• “Rights are not reducible to the correlative duties of those againstwhom they are held.”110

• “Neither is having a right reducible to enjoying a benefit.”111

• “Most good things are not the objects of human rights. The emphasison human rights in contemporary international society thus impliesselecting certain values for special emphasis . . . . But it also in-

108. Moreover, the actor who fulfills his obligation commits a “right”; the one who rejects,denies, and does not fulfill his obligation commits a “wrong.”

109. Unless one grasps these components, the non-Western religious reader is either bound tobe confused by Western theoretical descriptions of human rights, find them ontologically incoher-ent, feel himself subjected to a moral proselytizing from an alien moral ethic (usually secularhumanistic), subject to a political and/or intellectual manipulative power play from a Westernsource, or any combination thereof.

110. DONNELLY, supra note 83, at 8.111. Id.


volves selecting a particular mechanism—rights—to advance thosevalues.”112

• “The source of human rights is man’s moral nature.”113

We observe that Donnelly blends different meanings of rights together;thus, one meaning of “rights”—as conveyor of values—is blended with an-other meaning of “rights”—as a (presumed) political power mechanism, toensure the fulfillment of the object of the right. Because the ontologicalnarrative of the rights is left unmentioned, such a rights model requiresstructural modifications to make them ontologically coherent, such as:“Rights are actually put to use, and thus important enough to talk about,only when they are at issue, when their enjoyment is questioned, threatened,or denied.”114 Donnelly is further forced to tweak the analytical structure ofrights by positing what he calls the “possession paradox”: “‘having’ a rightis of most value precisely when one does not ‘have’ (the object of) theright,” thereby embedding in the very concept of the right its defining“object.”115

Muslim jurists operated under a paradigmatic frame of reference andnarrative that started with the list of a human being’s obligatory actions orduties. In this case, as El Fadl points out, “they thought of individual rightsas arising from a legal cause brought about by the suffering of a legalwrong. A person does not ‘possess’ a right until he or she has been wrongedand obtains a claim for retribution or compensation as a result.”116 Moreaccurately, we would say that the right certainly existed as the corollary ofthe obligation of the duty-bearer, but that the exercise of the right can onlyarise when the duty-bearer fails to fulfill his duty. Looked at from an Is-lamic duty-holder’s frame of reference, Donnelly’s “possession paradox”cannot even exist, because the right is ontologically dependent on a “dere-liction of duty” within a values narrative; it is not even dependent on afulfillment of duty. To use Donnelly’s language, “a world of saints[ where]rights [are] widely respected, rarely asserted, and almost never en-forced,”117 is in fact a world where everyone does their duty. We may asktherefore if in such a world wherein rights are almost never enforced andrarely asserted, can we still truly say they exist? If so, how can we know

112. Id. at 11 (emphasis added).113. Id. at 14.114. Id. at 8 (emphasis added).115. Id. at 9.116. EL FADL, supra note 1, at 27.117. DONNELLY, supra note 83, at 9. Another correction that Donnelly is forced to introduce

[in order to introduce the societal contractual aspect into the picture] is to differentiate between“assertive exercise” of the right: when it is exercised to “activat[e] the obligation of the duty-bearer”; “active respect” of the right: when “the duty-bearer takes the right into account” in hisbehavior “without it ever being claimed”; and “objective enjoyment” of the right: when “rightsapparently never enter into the transaction . . . [where] neither right-holder nor duty-bearer givesthem any thought.” Id.


such rights exist, much less even measure the extent to which they exist?The question remains unanswered by Donnelly.

From such an Islamic paradigmatic perspective, Western human rights(within a corporation-style conceptual narrative that personifies non–ontologically real actors: the state, the law, the courts, etc.) are not “real”assets but are a useful legal fiction, like saying that the ontologically unrealcorporation is in fact a “person” that acts. Its value lies in ensuring thatduty-bearers will in fact discharge their obligations—or, more importantly,will not fail to discharge their obligations—on a conventionally agreed-upon set of essential duties that are fundamentally required to ensure athreshold level of human dignity.118

Michael Perry best expresses, in a duty-holders frame of reference, thathuman rights doctrines are essentially to prevent the abuse of one humanbeing by another. He asserts that there are certain actions or “things” that“ought not to be done to any human being and certain other things [that]ought to be done for every human being.”119 It is this basic threshold set of“ought-to’s” and “ought-not-to’s” that from a duty-bearer’s frame of refer-ence underlies the modern notion of human rights.

The values and benefits enjoyed under the Islamic system flow from anarrative between God and Man. The main difference between the contem-porary West and the Muslim World is that Muslim nations long for an em-powering mechanism to guarantee these rights.

C. An Islamic Narrative of Rights

The classical Islamic juridical notion of human rights flows out of acontractual narrative between God and Man. It also presumes ontologicallyreal players. God created humankind, and Man freely entered into a con-tractual agreement or covenant with God. This is given by verse 33:72 ofthe Qur’an: “Indeed we offered the Trust to the heavens, the earth and themountains, but they refused to assume it, fearing it; but Man [freely] as-sumed it. Indeed he is unjust, [and] ignorant.”120 Humanity agreed to takeon the task of divine vicegerency on earth, and, prior to being incarnated onearth, took an oath with God, bearing witness against itself that it would notforget its duty to God.121

118. This opens the door to the questions of how truly universal and inalienable these rightsare. At face value, some of these rights will have to be abridged to those who violate others’rights. Thus, for example, a convicted murderer would forfeit his “inalienable right” to life by hisaction.

119. MICHAEL PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 5 (1998).120. QUR’AN 33:72.121. This event is given in QUR’AN 7:172, wherein God asks humanity “Am I not your Lord?”

to which humanity answered, “Yes, we bear witness; lest you should say on the Day of Resurrec-tion ‘We were unaware of this.’”


The relationship between God and Man is analogous to that betweenAnn and Bob above; it is a covenantal one, wherein Man freely assumed acontractual obligation to fulfill a set of tasks, the farai’id, comprising bothacts prohibited and prescribed (the “thou shalt not’s” and “thou shalt do’s”respectively)—both towards God (i.e., acts of worship) and toward fellowhuman beings and the rest of creation (acting justly, mercifully, generously,etc.). Simultaneously with this set of obligatory duties, a set of corollaryrights arises for the recipients of the duties. Specifically from the list ofduties Man has toward God, thus, arises “God’s rights,” and from God’sduties to Man and from Man’s duties to fellow-man arise human rights.

In this worldview, if Ann existed all by herself with no Bob, or viceversa, neither the right nor the obligation could exist. Both are dependent,first, on the existence of a relationship between Ann and Bob, and, sec-ondly, on the nature of the contractual relationship. A dynamic narrativeplays out: a scenario between right-holders and simultaneous duty-bearers.Failed duty-bearers elicit claimed and exercised rights, which in turn elicitother duty-bearers to fulfill their obligations. Rights followed by subsequentduties arise between two or more players; they arise concurrently like twosides of a coin. One side of the coin may be minted before the other, but ingeneral there can be no right-holder without a duty-bearer.

How the narrative plays out is a function of the sum of the languageparadigm and its underlying metaphysics. Although not required, a verb-based paradigm (like Arabic) that starts with verbs will start with actionsbetween ontologically real entities that in turn emphasize the “obligatoryduties” of players that simultaneously create corollary “rights” that accrueto the recipients of the duties. Again, although not required, a noun-basedparadigm will start with “ontologically real” rights that each player pos-sesses, and out of which entitlements to corollary obligatory duties fallupon those responsible for their discharge.

Shifting to a noun-based rights paradigm would mean a change fromthe frame of reference where the actors are obliged to perform a set ofobligatory duties to the frame of reference of the recipients of the obliga-tory actions. To do this we have to map the duties required of the variousparties into their corresponding rights, and start there. Then the paradigm“plays out” with the idea that the actors possess a number of rights which inturn entitle the right-owners to a set of obligatory duties from those obligedto perform them. In this frame of reference, actors possess rights, and obli-gations or duties are either ontologically dependent on the rights or “flow”out of them. The Islamic metaphysical narrative would in this case have hadto sound like something along the following lines:

God created humankind to fulfill certain antecedent Divine “rights.”The Divine rights “create” a set of human obligations, both toward God andtoward creation as recipients of these obligatory human actions. Out ofhuman rights flow a set of obligations from God to humankind, and from


humankind to each other, where humans are recipients of this set of obliga-tory actions. Such a frame of reference—of Divine rights that are ontologi-cally prior to human obligations—did indeed develop within the spectrumof Islamic thought via a creative esoteric reading of the Qur’an a la thethirteenth-century Sufi thinker and philosopher Muhyiddin Ibn al-’Arabi.122

The difference in the starting point of the narrative does not affect thecause-effect relationships between successive rights and duties in the narra-tive. Neither does it affect the logical structural ontology of rights, of howthey come into being. Whether we start with God’s “rights” resulting in thecreation of humankind with resulting human obligations, or begin our storywith God’s creating Man and Man’s agreeing to assume certain obligations,the net result is that Man’s set of obligations to God is the same. Analogousto the Ann and Bob relationship above, the Qur’anic metaphysical picture isthat of God “employing” Man to assume the task of being God’s vicegerenton earth. Man’s freely agreeing to take on this task creates a simultaneousset of mutual obligations and rights between God and Man.

The Qur’anic narrative is that God created Man, and gave him life, freewill, and the urge to find his happiness/personal fulfillment in the free exer-cise of his will. Man’s nature is God-given, and only God has the authorityto take it back or alter it.123 Thus, human life, human liberty/freewill, andthe human’s pursuit of his or her happiness/fulfillment are the three meta-attributes—therefore universal and inalienable—of Man. The “guarantor”of both the universality and inalienability of these meta-attributes is God;the “moment” or time—thus the cause—of this guarantee is God’s absolutejudgment on Judgment Day. Anyone who violates another’s life, freewill(i.e., liberty), and makes another unhappy (without just cause, such causesto be consistent with the divinely given set of ethical considerations) willhave to account for his or her action before the Creator at that time. Without

122. For example, the “right” of God to forgive, personified in the Divine Attribute of TheForgiver (and other similar Divine Attributes) “demands” in the archetypal world that the DivineWill order the Divine Attribute of “Creator” to create a being that is free to disobey God (i.e., sin),feel remorse, and ask for Divine forgiveness so that the Divine “right” of Forgiver can manifest.This Divine right embodied in the Attribute, the “Just,” in turn, demands of this created (human)being a set of human obligations or duties. But this Divine “right,” to be just, simultaneouslyrequires the manifestation of the Attribute of The Avenger to exact remedial claims and sanctionsthat God controls. This narrative could possibly be seen to emerge from Qur’an 33:72–73 whichread, in a loose exegetical translation to highlight the narrative: “Indeed We offered the Trust tothe heavens, the earth and the mountains, but they refused to assume it, fearing it; but Man as-sumed it—indeed he is an ignorant tyrant—in order that God may [exercise His right to] tormentthe hypocrites [men and women] and polytheists [men and women]; and that God [exercise Hisright to] relent mercifully to the believing men and women. And God was [even before the crea-tion of Man] Ever-Forgiving, Merciful” (emphasis added to highlight narrative). See FEISAL AB-

DUL RAUF, ISLAM: A SEARCH FOR MEANING 54 (1996).

123. This is consistent with the American Declaration of Independence’s statement that all ofhumanity has been “endowed by their Creator with certain unalienable rights.” THE DECLARATION

OF INDEPENDENCE para. 2 (U.S. 1776).


such a guaranteeing cause, they cannot coherently be deemed either univer-sal or inalienable.

Muslim jurists predominantly operated in the Arabic verb-based para-digm, and developed a system of valuation of actions: the obligatory, rec-ommended, permitted, disliked-but-allowable, and forbidden actions. Theyextracted from the “raw data” of Divine commandments in the Qur’an andas adumbrated by the Prophet a set of obligatory—prescribed and prohib-ited—actions (the fara’id) whose corollary was a set of rights, both of Godand of Man. Since then, Muslim thinkers have continually insisted thatrights flow out of duties and obligations,124 but need to make their caseclearer as to why that is so.

124. Moosa points out several instances of this:One is A.K. Brohi, who remarks that “the believer has only obligations or duties towards

God since he is called upon to obey the Divine Law, and such human rights as he is made toacknowledge stem from his primary duty to obey God. Yet paradoxically, in these duties lie allthe rights and freedoms.” Moosa, Dilemma, supra note 1, at 198 (emphasis added). In otherwords, Brohi implicitly asserts the primacy of the verb-based paradigm in Shari’a, i.e., mutualduties and obligations between God and Man, and between Man and fellow-Man. In this para-digm, as we have shown above, human rights as “things possessed” are not ontologically indepen-dent, but are contingent entities, ontologically dependent on the actions between ontologically realplayers; i.e., rights are personifications of verbs and therefore emanate from a specific cluster ofduties or responsibilities between men. Struggling to link these paradigmatic notions leads him toadd that “[m]an acknowledges the rights of his fellow men because this is a duty imposed on himby the religious law to obey God and the Prophet and those who are constituted as authority toconduct the affairs of state.” Id. (emphasis added). Italics in this and following quotes are mine,used to highlight importance of verbs and verbal nouns.

Another is Seyyed Hossein Nasr, who comments that[h]uman rights are, according to the Shari’ah, a consequence of human obligations andnot their antecedent. We possess certain obligations towards God, nature, and otherhumans, all of which are delineated by the Shari’ah. As a result of fulfilling these obli-gations we gain certain rights and freedoms which are again outlined by the Divine Law.Those who do not fulfil [sic] these obligations have no legitimate rights, and any claimsof freedom that they make upon the environment or society is illegitimate and a usurpa-tion of what does not belong to them, in the same way that those persons who refuse torecognise [sic] their theomorphic nature and act accordingly are only ‘accidentally’human and are usurping the human state which by definition implies centrality andDivine vicegerency.

SEYYED HOSSEIN NASR, ISLAMIC LIFE AND THOUGHT 18 (2001) (quoted in part in Moosa, Di-lemma, supra note 1, at 199).

Nasr here has conflated a number of points. First he implicitly suggests that rights are onto-logically dependent on action. In the worldly sense he is speaking of those who violate certainprescriptions: for example, a murderer would forfeit his right to life under Sharia law. In thecontext of the moral pro-actions of an individual, Nasr is referring to human rights in the absolutemetaphysical sense: the point of view of human beings’ eschatological rights on Judgment Day,whose Judge is only God. The Qur’an and Sunnah make it explicitly clear that this area of judg-ment belongs to God alone, whose right to judge on, no human being or human court may usurp.Qur’an 18:104–105 states that those whose efforts are null although they think they are doinggood are those who disbelieve in the messages of their Lord and of meeting Him; their works arevain—therefore, “We shall not set up a balance for them [to weigh their actions] on the day ofResurrection.”

The Qur’an explicitly paints a very different order between that of earth and that of heaven,and that the “game of life” that God has ordained for humankind, out of which flows a set ofhuman obligations, is expected to be protected by Qur’anically compliant laws on earth, which has


Even the UIDHR explicitly states that in “terms of our primeval cove-nant with God our duties and obligations have priority over our rights,”125

leading Moosa to suggest that the UIDHR may have been more appropri-ately named the “Universal Islamic Declaration of Human Duties.”126 HereMoosa makes a key suggestion. If in fact the Islamic paradigm is duty-based, then the first step is to generate a Universal Declaration of Sharia-Required Human Duties that demonstrably flows out of Islamic legal, tex-tual, and other sources. Mapping these into their correlative rights wouldgive us a truly Universal Islamic Declaration of Human Rights. Comparingthat to the UDHR would then be a more objective comparison between theWestern and Islamic components of these rights.

This is what the UIDHR either implicitly attempted or explicitly ig-nored (depending on whether one’s point of view is charitable or not). Tothe reader, the UIDHR feels much like the Universal Declaration of HumanRights at the beginning; then it was projected onto and compared with the“verbal sources” of commands and prohibitions in the Qur’an and Sunnisources of Hadith. Those that matched were then re-stated in a human rightsparadigm. While this was a valuable exercise, it needs to be subjected to amore rigorous methodology, and expanded to include Shia sources ofHadith.

Those who have chosen to short-circuit or ignore the paradigm issueare less concerned about such mental peregrinations, and prefer to focus onthe ends or outcomes of both the Islamic ethic and the secular ethic on whata notion of the common good must mean. The liberal Tunisian Islamistideologue Rashid al-Ghannushi is among those who fall into this category.By following a purely ethical standpoint, he finds it easy to assert:

major implications for an earthly jurisprudence. We believe that is where a potential pitfall liesthat has led Muslims to have gone wrong in their treatment of other religious minorities. After thedeath of the Prophet, and as the Islamic empire expanded, some pre-Islamic (jahili) notions incon-sistent with the Qur’anically mandated rules of societal conduct crept back into society. In allsocieties (even the United States), treason earned a capital punishment. The distinction betweentaking a position differing from that of the rulers in matters of religion purely as a matter offreedom of thought, (i.e., without switching political allegiance) and doing so in a context where itnecessarily means that one’s political allegiance became allied with an enemy (thus an act ofpolitical treason) is often unclear to the reader of history, and often as well to those in power. Thisdistinction needs to be made however, between Islamic theology and Islamic history where rulersin some instances lost this distinction. One example where the State’s role as “judging on behalfof God” vis-a-vis people’s religious beliefs peaked (whether towards non-Muslims regarding theirreligion or to Muslims regarding some of their ideas) was that of the Caliphate of the Abbasid al-Ma’mun (who ruled from 196/812 to 223/838). The Qur’anically mandated Divine intent regard-ing how we rule ourselves on earth, giving humanity the right to freedom of religious conscienceas the Divine intent for this “game of life” and for which God will judge us on how we played it inthe hereafter, was abridged. People have confused human obligations towards society with anattempt to impose their eschatological views on others, thus “depriving God” of His “sole andexclusive right”—or anticipating Him in the exercise of His right—to judgment on Judgment Day.

125. UIDHR, supra note 73, at pmbl. para. f (emphasis added).

126. Moosa, Dilemma, supra note 1, at 197 (emphasis added).


A comparison between the principles of human rights in Islamand the modern human rights charters discloses that there is alarge area of commonality, with few exceptions, which is the rea-son why the universal declaration of human rights, for example—in its general thrust—is so widely received by the Muslim whohas a good understanding of his religion.127

As I shall detail in the next section, articulations of human rights, likethose found in the 1776 American Declaration of Independence—and insubsequent human rights declarations, such as the Universal Declaration ofHuman Rights and the European Convention on Human Rights—histori-cally arose as a reaction to great suffering and experiences of legal andmoral wrongs, thus validating the perspective of Muslim jurists on the etiol-ogy of rights as arising out of a failure in performing a morally contractualduty.128 Again, the philosophical underpinnings of the American Declara-tion’s unalienable rights to “Life, Liberty and pursuit of Happiness” werebased on a metaphysical narrative that—in the eyes of its authors—cameout of “the Laws of Nature and of Nature’s God.”129 Although Christian,they were not Christian in the narrowest and most parochial sense of theword, but rather Christian formulations in the broadest sense, and held aperspective that expressed the supra-religious metaphysics of an Abrahamicreligious ethic that embraces within its orbit the Jewish and Islamicworldviews.130

Hence, placing an Islamic list of human duties into a rights-holdersframework, and within a governmental powers doctrine could result in ho-meomorphic Islamic human rights “flowing out of the Islamic woodwork”that would overlap with much, if not most of the universal declaration ofhuman rights. Hermeneutics, apologetics, and the tools of modern scholar-ship notwithstanding, most Muslim scholars (such as Moosa and Ghan-nushi) would agree that the majority of Muslims intuitively recognize the

127. Quoted in id. at 200.128. The Universal Declaration of Human Rights in 1948 and the European Convention on

Human Rights in 1953 came about as a result of the massive suffering Europe and the West(including the United States and the Soviet Union) underwent during the period from the GreatDepression in 1929 through the end of World War II. During this time the application of technol-ogy to the advancement of war and abuses resulted in the scourges of Nazism, Fascism, and theHolocaust. See generally HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES, supra note26, at chs. 1–3.

We may also note that these human rights declarations, in a general sense, “came out” of anattempt to attenuate the ravages of a rampant capitalism and an expansion of state powers as aresult of the industrial revolution, and the ability of technology to leverage state power at theexpense of the common man.

129. THE DECLARATION OF INDEPENDENCE paras. 1–2 (U.S. 1776).130. By Abrahamic ethic, we mean the belief in a strict monotheism of a personal providential

God who commanded humanity with the two major commandments common to the Abrahamicfaith traditions of Judaism, Christianity, and Islam: to love God with all the components of one’sbeing (heart, mind, soul, and physical strength), and to love one’s neighbors (fellow human be-ings) as oneself. See RAUF, WHAT’S RIGHT WITH ISLAM, supra note 1, at 14–18.


universal declaration of human rights as consistent and positively reso-nating with their emotional, intellectual, and spiritual understanding of theirreligion; such intuition flowing out of the Qur’anic idea of right religion asbeing din al-fitrah.

IV. HOW THE AMERICAN DECLARATION OF INDEPENDENCE,CONSTITUTION AND BILL OF RIGHTS ARE CONSISTENT

WITH ISLAMIC JURISPRUDENCE

Such an intuitively religious approach to human rights discourse arisesout of the American Declaration of Independence (declared on July 4, 1776)and subsequent Bill of Rights (comprising ten amendments ratified in De-cember 1791) to the Constitution (itself signed in September 1787 and rati-fied by the states soon thereafter). Highlighting the context and narrativesurrounding the Declaration reveals strong resonances with classical Is-lamic legal thought: First, El Fadl’s point above, namely that Muslim jurists“thought of individual rights as arising from a legal cause brought about bythe suffering of a legal wrong” and that “[a] person does not possess a rightuntil he or she has been wronged” is in fact the historical contextual narra-tive, and is therefore arguably the ontological and legal cause of the rightsenumerated in the American Declaration.

The Declaration devotes more than four times as much space toenumerating the “long train of abuses and usurpations”131 than to expres-sing the rights. Twenty-seven paragraphs (some of which are just clauses)scream pleadingly at the reader, detailing “a history of repeated injuries andusurpations, all having in direct object the establishment of an absolute tyr-anny”132 by the King of Great Britain upon the American colonies. Amongthe wrongs committed were his having “plundered our seas, ravaged ourcoasts, burnt our towns, and destroyed the lives of our people,”133 mocktrials to protect his armies from punishment for murders committed, andhaving made “judges dependent on his will alone.”134 The King was “deafto the voice of justice,”135 so the American states had to “acquiesce in thenecessity” of announcing their separation, a “necessity which constrain[ed]them to alter their former systems of government.”136

The American Declaration’s “unalienable rights” did not come out ofthin air: the Sharia legal cause for expressing rights as arising from legalcauses brought about by the suffering of a legal wrong is what historicallymidwived the Declaration. The long opening line of the Declaration makesthis very clear:

131. THE DECLARATION OF INDEPENDENCE para. 3 (U.S. 1776).132. Id. at para. 4.133. Id. at para. 28.134. Id. at para. 13.135. Id. at para. 4.136. Id. at para. 33.


When in the Course of human Events, it becomes necessary forone People to dissolve the Political Bands which have connectedthem with another, and to assume among the Powers of the Earth,the separate and equal Station to which the Laws of Nature and ofNature’s God entitle them, a decent Respect to the Opinions ofMankind requires that they should declare the causes which im-pel them to the Separation.137

The Declaration’s authors, feeling that they were required to declare(before the Court of Public Opinion) the causes which impelled them to theseparation, proceeded—in response to and arising from the legal causebrought about by the suffering of more than two dozen legal wrongs—toenumerate and claim the unalienable rights that had been infringed; thus,

We hold these Truths to be self-evident, that all Men arecreated equal,138 that they are endowed by their Creator with cer-tain unalienable Rights, that among these are Life, Liberty, andthe Pursuit of Happiness.139

The second point of similarity with Islamic legal thought is that theauthors of the American Declaration held that these rights flowed out of aGod-centered metaphysical world view and ethic. Roger Pilon, senior fel-low and director of Cato’s Center for Constitutional Studies, points out that“perhaps the most important line in the document [is]: ‘We hold theseTruths to be self-evident.’”140 These truths, he adds, ground the Declarationin reason, and

invoke the long tradition of natural law, which holds that there isa “higher law” of right and wrong from which to derive humanlaw and against which to criticize that law at any time. It is notpolitical will, then, but moral reasoning, accessible to all, that isthe foundation of our political system.141

Replace “higher law” in this sentence with “Sharia law”—with the concom-itant understanding of Shatibi that the meta-purpose of Sharia law is fur-thering the interests of humankind—and one gets precisely the classicalIslamic viewpoint.

Unlike the present-day position held by many contemporary Wes-terners who regard human rights as emanating from a purely secular

137. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776) (emphasis added).138. See DONNELLY, supra note 83, on what is intended by human equality. We must note

however that although the original understanding that the authors intended came out of a religiousmoral viewpoint, historically they did not in practice treat other races and genders equally for twomore centuries.

139. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).140. Roger Pilon, Preface to THE DECLARATION OF INDEPENDENCE AND THE CONSTITUTION OF

THE UNITED STATES OF AMERICA 1, 2 (Cato Inst. 2002). The objective of reasoning, or the objectof human intellect, is truth; thus, the objective of moral reasoning is moral truth. And the foundersregarded these rights, emerging from their experience of a “long train of abuses and usurpations,”as moral truths.

141. Id. at 2–3.


worldview devoid of any religiosity, the Declaration’s authors clearly em-braced a religious worldview. The common denominator of their belief wasa supra-religious Deist and moral worldview that included the Christianmoral ethic based on the second Abrahamic commandment of loving one’sneighbor as oneself, and which granted all citizens the freedom to expressthe first commandment (loving God with all one’s mind, heart, soul, andstrength) according to their individual preferential mode of expressing thislove.142

This is evident from the opening lines of the Declaration that entitlethe wronged people to assume the rights of equality, which the “Laws ofNature and of Nature’s God” entitles them to assume, namely that all menare created equal,143 that their Creator endowed them with certain unalien-able rights, and that those rights include “life, liberty, and the pursuit ofhappiness.” The phrase “Laws of Nature and of Nature’s God” makes itclear that this Declaration regards its “self-evident truths” as not only ema-nating from the long tradition of natural law, but it also places (if notequates) natural law as being something that is embraced by and flowingfrom “the Laws of Nature’s God,” and thus reveals an intuitive sense ofDivine Law.144

Muslims call this intuitive sense of religiosity din al-fitrah, whichmeans natural law (or natural religion, the word din meaning both religionand law in Arabic) and is the core definition of Islam and of “right law or

142. But when the history of the legal causes that brought these rights into being is erasedfrom a people’s popular collective memory, and it becomes politically correct to be sacrilegious, itbecomes understandable—though not excusable—why many reject the notion that human rightsevolved within the Western, and specifically American, scene out of a deep religious heritage. Theauthoritarian and despotic political contexts of many Muslim societies have created the politicaland psychological contexts from which to establish an Islamic Declaration of Human Rights. Butbecause the UIDHR, unlike the American Declaration, does not list its “legal parentage” (i.e., itslegal causes of wrongs committed against Muslim peoples), this has in part contributed to thecharge that it is the hermeneutically “illegitimate child” sired of a Westernized me-tooapologetics.

143. Human equality flows from the Abrahamic faiths’ common assertion that humankind wascreated from one male and one female [QUR’AN 49:13; Genesis 1:27], thus are all equally brothersand sisters. Therefore, there can be no classes or castes among humankind. It is this notion ofhuman equality that is expressed in the American Declaration of Independence, and not that allhuman beings are equal in God-given talent.

144. In 1775, a year before the American Revolution began, Alexander Hamilton wrote, “Thesacred rights of mankind are not to be rummaged for among old parchments or musty records.They are written, as with a sunbeam, in the whole volume of human nature, by the hand ofDivinity itself, and can never be erased or obscured by mortal power.” The Farmer Refuted (1775),in AMERICAN STATE PAPERS 123, quoted in FORREST CHURCH, THE AMERICAN CREED 32 (2002)(emphasis added). Almost fifty years later, in 1824, Thomas Jefferson noted in reminiscing aboutthe drafting of the Declaration of Independence, “We had no occasion to search into mustyrecords, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barba-rous ancestry. We appealed to those of nature, and found them engraved on our hearts.” ThomasJefferson, letter to John Hambden Pleassants, April 19, 1824, quoted in CHURCH, supra, at 33.


right religion” (din al-haq).145 The authors of the American Declaration usetheistic language by calling human rights the “sacred rights of mankind”written by the hand of Divinity.146 Whatever might arguably have been theresult of the Enlightenment in banishing religion—and specifically Christi-anity—from the boardrooms of European society, American political “sec-ularity” defined itself not as anti-religiosity but as a distinct pro-religiositybased on the ethics and metaphysics of a divine and providential theisticreligiosity, de-linked from Christian liturgy that allowed originally onlyProtestant and non-Catholic “Christian religions,” but later expanded toother varieties of Christian religious expression as part of the Americansocietal contract. The contemporary need in the United States is to recog-nize the Islamic metaphysical view as consistent with this.

The third point of similarity with Islamic legal thought is the rightsthemselves, consistent with the opinions of Muslim jurists who said that themeta-purpose or meta-intent of Sharia is maslaha, i.e., the moral commongood and best interests of the people articulated within a context of moralreasoning that is delimited by moral truth, and from which all man-madelaws must be derived and against which they are criticized. This is true notonly in the derivation of laws but also in the application of laws; otherwise,as I pointed earlier, the mechanisms of the law may come to be used tothwart the intentions of the law.

The phrasing “the Creator has endowed humankind with certainrights” (that they can claim against other players) is the precise equivalentand corollary of saying “Divine Law requires certain players [(the duty-bearers)] to fulfill certain obligations towards others [(the rights-holders)].”147

The Qur’anic narrative of the meaning of man describes man as cre-ated by God for the purpose of worshipping and glorifying God.148 Yet manwas given freewill to either choose or reject God, to live a life consistentwith this choice, and to find happiness in pursuing the purposes for whichGod had given him the natural ability, talent, and inclination.149 The

145. The Qur’an states that monotheism and its social concomitants, as true or right religious-ness, were embedded by God in human nature as part of human conscience and that God com-manded humanity to honor it: “So set thou thy face steadily and truly [literally, hanif-ly] to theFaith [fitrah]: (Establish) God’s handiwork according to the pattern on which He has made man-kind: No change (let there be) in the work (wrought) by God: that is the standard Religion: butmost among mankind understand not.” QUR’AN 30:30. The idea of this verse is that any personwho listens to his or her heart and conscience would recognize that God is One, that humanity isone family, that humans should be free, and should treat each other fairly and with justice.

146. See generally THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).147. Id.148. “I have only created Jinns and men, that they may serve Me. No Sustenance do I require

of them, nor do I require that they should feed Me.” QUR’AN 51:56–57.149. This is given by verses like 18:29, which reads: “Say, ‘The Truth is from your Lord’: let

him who will, believe, and let him who will, reject (it)” QUR’AN 18:29 (emphasis added). This isin conjunction with verse 2:256, which states, “Let there be no compulsion in religion,” and 5:51,


Qur’anic picture that this portrays is that the divine plan for human life onearth requires human free will, and requires divine help in achieving itsacceptance or rejection of God.150 Since part of the divine plan is to granthuman beings the space to accept or reject God and to do so in a manner oftheir choosing, human configuration of society also must allow this space.Not to do so would thwart the divine will and reduce humanity’s degrees ofhuman freedom. This is the primary Qur’anic context of human liberty, andis a right implicit in the phrasing “liberty” as the over-arching inalienableright after “life.”

The Declaration’s final paragraph appeals “to the Supreme Judge ofthe World for the Rectitude of our Intentions,” and concludes with thewords, “And for the support of this Declaration, with a firm Reliance on theProtection of divine Providence, we mutually pledge to each other ourLives, our Fortunes, and our sacred Honor.”151 In other words, the Foun-ders, in a manner that resonates and is consonant with the beliefs of devoutMuslims, intended to establish America as a religious God-believing soci-ety and nation, a moral society whose ethics emanate from and reflect theunderlying transcendent unity (and core) of religious beliefs of theAbrahamic Ethic.

A. On the Form of Government that Could Protect Human Rights

A careful reading of the American Constitution and its amendmentssounds like an employment contract between the people (as employers) andthose elected to government (as employees). It indicates a deep solicitous-ness that the people’s representatives and government officials be beholdensolely to the American people, and not to other U.S. government officials,nor to any foreign or domestic state. The Constitution is the means bywhich the people can retain power over government.

The Declaration was made in the context of securing individual humanrights against overbearing and tyrannical rulers (read: securing that the gov-ernment officials fulfilled their divinely ordained duties towards the citi-zens). The Founders recognized that a mere declaration of rights wasinsufficient; they needed to address the issue of power, and therefore paidvery careful attention to the structure of government, realizing that its pow-ers had to be carefully divided and severely restrained. They, therefore,explain:

which informs us that “If God had so willed, He would have made you a single People, but (HisPlan is) to test you in what He hath given you: so strive as in a race in all virtues. The goal of youall is to God; it is He that will show you the truth of the matters in which ye dispute.”

150. Qur’anic verses like 14:4 and 5:48 (respectively) reveal: “Now God misguides thosewhom He pleases and guides whom He pleases: and He is Exalted in Power, full of Wisdom” and“If God had willed, he would have made you a single nation, but He misguides whomever wills[or whomever He wills—both readings are valid] and guides whomever wills [or whomever Hewills]. And you will surely be questioned about what you were doing.”

151. THE DECLARATION OF INDEPENDENCE para. 32 (U.S. 1776) (emphasis added).


That to secure these Rights, Governments are instituted amongMen, deriving their just Powers from the Consent of the Gov-erned, that whenever any Form of Government becomes destruc-tive of these Ends, it is the Right of the People to alter or toabolish it,152 and to institute new Government, laying its Founda-tions on such Principles, and organizing its Powers in such Form,as to them shall seem most likely to effect their Safety andHappiness.153

This passage points out that the government’s overriding purpose—itsend—is to secure the human rights of its citizens (“men” who have alreadybeen declared equal, thus abolishing any class structures that posit humaninequality). In addition, the powers the government may need to secure itscitizens’ rights (the ends) must be derived from the citizens’ consent if thepowers are to be just.154

As Pilon comments, “Government is thus twice limited: by its end[i.e., it is obliged to protect our God-given rights], which any of us wouldhave a right to pursue were there no government; and by its means, whichrequire our consent.”155 This is where the American Declaration made amajor contribution to political thought; defining both an ends-driven defini-tion of right governance, and a means that would ensure that the ends areachieved.156

The Founders, therefore, structured the powers of government in a waythat to them they appeared best suited to prevent an abuse of their rights.“Having recently overthrown oppressive English rule [in the RevolutionaryWar], they were not about to re-impose oppressive government on them-selves . . . . Their basic task,” Pilon adds, “was to devise a government . . .strong enough to secure [the expressed] rights against domestic and foreignoppression, yet not so powerful or extensive as to be oppressive itself.”157

Thus, they established a notion of limited government, granting governmentspecific authorized powers, and “then checked and balanced those powersthrough a series of extraordinarily thoughtful measures.”158

152. Note the language of the Declaration, that “the Right of the People to alter or to abolish”the government occurs when the “Government becomes destructive of these Ends.” What Mus-lims had not achieved in their 1400-year history was to effect such a change of government whenit had become destructive of its ends from the point of view of Islamic principles of justice. Thisis, in our times, what Muslims dearly want to institute.

153. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

154. Pilon, supra note 140, at 3.

155. Id. (emphasis added).

156. This is what we hope the Sharia Index Project will do: establish both an ends-drivendefinition of Islamic governance, and determine which means have best achieved such ends.


158. Id.


They “intended the doctrine of enumerated powers to be our principaldefense against overweening government.”159 The government could hardlyabuse a power that it did not have in the first place.

But they provided other defenses as well. In addition to dividing powerbetween national and state governments, leaving most power with the statesor with the people, they separated powers among the three branches of thenational government—legislative, executive, and judicial—and devised aseries of checks and balances to further restrain these powers.160

The Preamble to the Constitution sets forth a number of basic princi-ples, and further reminds the reader of the right of individual human freewill through its emphasis on liberty:

We the People of the United States, in Order to form a more per-fect Union, establish Justice, insure domestic Tranquility, providefor the common defence, promote the general Welfare and securethe Blessings of Liberty to ourselves and our Posterity, do ordainand establish this Constitution for the United States ofAmerica.161

“We the People” serves to remind government officials that all powercomes from the people; “to ourselves and our posterity” reminds govern-ment that it exists not only to act in the best interests of its generation, butalso for the sake of succeeding generations of Americans.

The government received only strictly limited and enumerated powersto exercise on the people’s behalf, which is expressed in the first line ofArticle I of the Constitution: “All legislative Powers herein granted shall bevested in a Congress of the United States, which shall consist of a Senateand House of Representatives.”162 Thereby the people established a meansof control via their elected senators and congresspeople to maintain theirpower over government. The first seven sections of Article I describe ingreat detail the elections of senators and congresspeople, the times, fre-quency, places, and manners of holding their elections, the compensationthey may receive, and the powers they may exercise. That the people“herein granted” only limited legislative powers is additionally borne out bythe enumeration of those powers in Section 8. Knowing that titles createdclasses of people in other societies (e.g., the noble classes), Section 9sought to pre-empt any possibility of that happening in America. The draft-ers prohibited senators and congresspeople from being subjected to influ-

159. Id. at 6.160. Id. (“Within the bounds of its enumerated powers, for example, Congress may enact

legislation; but the [elected] president has a power to veto such legislation, which Congress maythen override only by a supermajority vote. Likewise, in deciding cases or controversies beforethem, the courts may exercise the judicial power by reviewing the actions of the other twobranches to ensure that they do not exceed the limits imposed by the Constitution . . . but thepresident and Congress determine who shall sit on the federal courts.”).

161. U.S. CONST. pmbl.162. U.S. CONST. art. I, §1.


ence by governmental power by prohibiting them from receiving any titlesfrom the government, including from domestic or foreign states. Allowingtitles would have diluted the power people retained over their senators andcongresspeople. Section 9 therefore ends with the statement, “No Title ofNobility shall be granted by the United States: And no Person holding anyOffice of Profit or Trust under them, shall, without the Consent of the Con-gress, accept of any present, Emolument, Office, or Title, of any kindwhatever, from any King, Prince or foreign State.”163

Article II of the Constitution turns to the powers of the President,granting him executive power. It goes into his election, including howoften, the term,164 and the various powers granted to the office of the Presi-dency. It also addresses the President’s compensation, and that he “shall notreceive within that Period [of his term] any other Emolument from theUnited States, or any of them.”165 To ensure his loyalty to the terms of theConstitution, Section 1 of Article II adds that,

Before he enter on the Execution of his Office, he shall take thefollowing Oath or Affirmation:—“I do solemnly swear (or affirm)that I will faithfully execute the Office of the President of theUnited States, and will to the best of my Ability, preserve, protectand defend the Constitution of the United States.”166

Article III then turns to the judicial powers granted to the U.S. Su-preme Court and federal court system, their duties and the compensation ofjudges.

The Constitution was drafted in 1787—eleven years after the Declara-tion was made and the new nation won its independence from the British onthe battlefield. And yet, in spite of the language of the founding documentsand the new government, the drafters were still concerned that the new gov-ernment might abuse its powers. Therefore, to the end of allaying this fear,in 1789 Congress transmitted to the state legislatures twelve proposedamendments, ten of which were adopted and became known as the Bill ofRights.

The preamble to the Bill of Rights shows how the founders attemptedto further preempt the possibility of government abusing its powers andrevealed their concern and uncertainty that their newly established govern-ment might in fact become destructive of its proper ends:

The Conventions of a number of the States, having at the time oftheir adopting the Constitution, expressed a desire, in order toprevent misconstruction or abuse of its powers, that further de-

163. U.S. CONST. art. I, §9, cl. 7.164. The term was limited by the Twenty-second Amendment to a maximum of two terms,

again to limit the power of the president after Franklin Roosevelt won four elections, gaining toomuch power in the process.

165. U.S. CONST. art. II, §1, cl. 7.166. U.S. CONST. art. II, §1, cl. 9.


claratory and restrictive clauses should be added: And as ex-tending the ground of public confidence in the Government, willbest ensure the beneficent ends167 of its institution.168

The last two of the original ten amendments were added for greatercaution. No bill could list all rights, so the drafters added the Ninth Amend-ment as a catchall and reminder clause: “The enumeration in the Constitu-tion of certain rights shall not be construed to deny or disparage othersretained by the people.”169 This also means that the government, in the exe-cution of its duties in accordance with the rights granted to it by the people,may not use the given right as an argument to deny or disparage other rightsretained by the people; thus, the people’s rights trumped those of the gov-ernment, and not the other way around.

Pilon points out that this concept

is reiterated, as if for emphasis, in the Tenth Amendment, the fi-nal member of the Bill of Rights that was drafted in 1789, thenadded, after ratification, in 1791: “The powers not delegated tothe United States by the Constitution, nor prohibited by it to theStates, are reserved to the States respectively, or to the people.”170

To recapitulate, only certain powers were delegated or granted by the peo-ple to the government, and which were then enumerated in the Constitution.The rest were reserved to the states—or to the people, never having beengranted to either level of government.171

Here, it should be pointed out that the Constitution and the Bill ofRights (the Amendments) speak of duties, things that each of Congress, thePresident and the Judiciary may or may not do.172 This shows that in ad-dressing the institutions of power, and specifically government, the protec-tion of rights can only be effectively established by enumerating the do’sand don’ts, the list of duties and limitations on action of the power-bearingduty-bearers toward the rights-holders. This is consistent with and explainswhy, in the Islamic frame of reference, the focus is on duties directed to-ward the duty-bearers; for if they fulfill their duty, human rights will beautomatically addressed. It also shows that it is not possible to ensurehuman rights by just a declaration of rights alone; a simultaneous declara-

167. Note again how a Bill of “Rights” emerges out of a fear of the potential abuse of power.168. BILL OF RIGHTS, pmbl.169. U.S. CONST. amend. IX.170. Pilon, supra note 140, at 4–5.171. Id.172. For example, the First Amendment (or the first “right” of the Bill of Rights)—which

includes the phrase known as the “establishment clause” and is the basis of the government notestablishing a state religion—reads, “Congress shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of thepress, or the right of the people peaceably to assemble, and to petition the Government for aredress of grievances.” U.S. CONST. amend. I.


tion of duties upon those who are in the positions of power is necessary toensure the protection of any human right.

Even then, unless we can exercise power over those who exercise it onour behalf, the danger of abuse still exists; for “[i]n the end,” as Pilon pointsout,

no constitution can be self-enforcing. Government officials mustrespect their oaths to uphold the Constitution; and we the peoplemust be vigilant in seeing that they do. The Founders drafted anextraordinarily thoughtful plan of government, but it is up to us,to each generation, to preserve and protect it for ourselves and forfuture generations. The Constitution will live only if it is alive inthe hearts and minds of the American people. That, perhaps, is themost enduring lesson of our experiment in ordered liberty.173

B. The American Democracy’s Creed, and the Constitutional Limits tothe Government’s Sovereignty

The purpose of the founding of the United States was not only to es-tablish a democracy, but to establish a religious democracy, the Biblical“City on the Hill,” a land where religious freedoms prevailed. The envi-sioned society secured both freedom of religion for those who wanted topractice their religion freely, and freedom from religion for those whowished to practice no religion at all. In this society, one was free to be anatheist if one chose to be, but no belief was imposed, including atheism,upon all of society. Yet the society would not behave in a manner thatviolated the norms of ethics and goodness—which were understood to orig-inate from a religious moral viewpoint.

The second greatest commandment of the Abrahamic Ethic, namely tolove one’s fellow human being as oneself, was in essence de-linked fromthe first commandment in the sense that the choice of whether one wantedto love the One God the Lord, and how one chose to express that loveliturgically, was left up to the individual. The Founders, however, perceivedthe morality of the second commandment as flowing from the first. In hisfarewell address, George Washington summed up the role of religion inAmerica:

Of all the dispositions and habits which lead to political prosper-ity, Religion and morality are indispensable supports. In vainwould that man claim the tribute of Patriotism, who should laborto subvert these great Pillars of human happiness, these firmestprops of the duties of Men and citizens . . . . And let us withcaution indulge the supposition, that morality can be maintainedwithout religion. Whatever may be conceded to the influence ofrefined education on minds of peculiar structure, reason and expe-rience both forbid us to expect that National morality can prevail



in exclusion of religious principle . . . . Cultivate peace and har-mony with all. Religion and morality enjoin this conduct; and canit be that good policy does not equally enjoin it? It will be worthyof a free, enlightened, and at no distant period, a great Nation togive to mankind the magnanimous and too novel example of aPeople always guided by an exalted justice and benevolence.174

The moral boundary established by the Declaration is essential to con-textualize the view of sovereignty. The Declaration points out that we insti-tute government in order that it may fulfill its ends, namely its divinelymandated obligations to protect its citizens’ inalienable rights that were en-dowed to us by the Creator. But “whenever any Form of Government be-comes destructive of these Ends,” i.e., it does not fulfill its divinelymandated obligations, “it is the Right of the People to alter or to abolish it,and to institute new Government,” and if need be re-organize its powers insuch a way that it will protect its citizens’ rights and discharge the God-given obligations.175 (Note here, as Muslim jurists averred, the right “ap-pears” and is “exercised” at the point of dereliction of duty, when the obli-gation is unfulfilled, which occurs when the “Government becomesdestructive of these Ends.”)

When an American (or any other) government discharges its (God-given) ends (i.e., God-given obligations), it has moral authority; i.e., it de-rives its moral authority from God. If, however, the government has notdischarged its God-given obligations, it has lost its moral authority andlegitimacy.

Writing in 2002, Supreme Court Justice Antonin Scalia asserts that“[t]he mistaken tendency to believe that a democratic government, beingnothing more than the composite will of its individual citizens, has no moremoral power or authority than they do as individuals has adverse effects inother areas as well.”176 Scalia recommends that

the reaction of people of faith to this tendency of democracy toobscure the divine authority behind government should not beresignation to it, but the resolution to combat it as effectively aspossible. We have done that in this country (and continental Eu-rope has not) by preserving in our public life many visible re-minders that—in the words of a Supreme Court opinion from the1940s—“we are a religious people, whose institutions presupposea Supreme Being.” These reminders include: “In God we trust”on our coins, “one nation, under God” in our Pledge of Alle-giance, the opening of sessions of our legislatures with a prayer,the opening of sessions of my Court with “God save the UnitedStates and this Honorable Court,” annual Thanksgiving proclama-

174. CHURCH, supra note 144, at 138–39 (emphasis added).175. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).176. Antonin Scalia, God’s Justice and Ours, 123 FIRST THINGS 17, 19 (2002), available at

http://www.firstthings.com/article/2007/01/gods-justice-and-ours-32.


tions issued by our President at the direction of Congress, andconstant invocations of divine support in the speeches of our po-litical leaders, which often conclude, “God bless America.”177

American government is therefore theistic democracy, not atheistic de-mocracy. The “tendency of democracy to obscure the divine authority be-hind government” that Scalia warns of is subtle.178 By obscuring theboundary of divine authority in the eyes of many, they then equate democ-racy to an absolute sovereignty of its nation’s citizens. If we bear in mindthat it is possible to have any combination of beliefs and forms of govern-ment,179 as Scalia implicitly suggests, then our reaction as “people of faithto this tendency of democracy to obscure the divine authority behind gov-ernment should not be resignation to it, but the resolution to combat it aseffectively as possible.”180

Theistic democracy delimits governance by, and subjects it to, Divineand thus moral law. The Courts are, and have to be, the guardians and inter-preters of this law in any form of governance. This holds as true for theisticdemocracies as it was for theistic monarchies. As a theistic democracy, theAmerican Declaration in fact principally expresses the values and structuresof Islamic legal thought, albeit in a non-parochially Islamic fashion; how-ever, where it has gone further is in articulating the form of governanceneeded to assure achievement of its ends.

CONCLUSION

We have now identified several of the key threads involved in estab-lishing an Islamic human rights doctrine, and, necessarily, compared themto the American Bill of Rights, from which we believe the UDHR flowed.They include the following:

Islamic law regards a right held by a right-holder as the ontologicalcorollary of a duty mandated upon a duty-holder; the need to exercise theright “arises” at the time of dereliction of duty by the duty-bearer, and aspart of a contractual narrative into which both parties freely entered.

Islamic law also regards the human rights-duties narrative as emanat-ing from a covenantal relationship between God and Man that Man freelyaccepted of God; i.e., to be God’s vicegerent or ambassador on earth. This

177. Id. at 19–20.178. Id. at 19.179. This error occurs because many presume an equivalence between religious beliefs and

forms of governance. It is possible to have an atheistic monarchy or an atheistic republic. Thus, itis possible to have an atheistic democracy, an atheistic socialism, and an atheistic fascism. Analo-gously, it is also possible to have a theistic monarchy or republic, a theistic democracy, a theisticsocialism, and a theistic fascism. Thus, it is also possible to have a Jewish, Christian, or Islamicmonarchy or republic; a Jewish, Christian, or Islamic democracy; a Jewish, Christian, or Islamicsocialism; or a Jewish, Christian, or Islamic fascism. Conflating atheism with democracy is falsehistorically and intellectually.

180. Scalia, supra note 176, at 19 (emphasis added).


provides the contractual narrative, in which Man is a free agent possessingfree will, whose free will allows him the option to violate this contract.From the violation of this contract comes the idea of sin and violation ofwhat is morally right. Fulfillment of this contract defines that which is mor-ally correct.

The American Declaration’s existential and metaphysical viewpoint isidentical to the Islamic in that it:

• Posits a God-Man relationship and narrative out of which comes alist of mutual duties and corollary rights. The moral duty towardGod is to encourage religion for the well-being of society. The com-mand to love and adore God to their utmost, in the manner of theirchoice, and to love their fellow human beings as they love them-selves, is one of two major commandments common to the threeAbrahamic faiths: Judaism, Christianity, and Islam.

• Because all of humanity is considered to have been created from oneoriginal couple, this Abrahamic Ethic regards all humanity as “sib-lings”—thus equal. From this comes the moral “self-evident” truthof human equality.

• That all of humanity has moral free will, defined as the option todisobey God and commit sin; thus, the duty of the power structure isto protect human liberty in order that humans may exercise their freewill, and allow humans the privilege of exercising their free will in amanner that does not prevent others within the society from exercis-ing their free will. Implicit in this idea is that a power structure orsystem of rule that denies human liberty thwarts the Divine intentexpected of Man.

The historic event of the American Declaration of rights is consistentwith the Islamic juridical idea that a right arises when the duty-bearer vio-lates his obligations. The specific legal and moral causes that led to thedeclaration of inalienable rights were the “long train of abuses”181 by theEnglish king towards the American colonies. Parallel to this was the his-toric event of the Universal Declaration of Human Rights (as well as thesubsequent European Convention on Human Rights). Both were caused bya three decades-long period of enormous human suffering in Europe. From1914 through 1945, the technological advances in warfare and new post-Industrial Revolution socio-economic disruptions in human relations pre-cipitated the First World War, followed a decade later by a lengthy eco-nomic depression that witnessed starvation and human suffering on ahistorically unprecedented scale, loss of civilian and military human life ofunprecedented proportion in the Second World War, genocide of Jews, gyp-sies, and others deemed racially impure by the fascist Nazi regime (the Hol-

181. THE DECLARATION OF INDEPENDENCE para. 3 (U.S. 1776).


ocaust), and the invention of weapons of mass destruction capable ofdestroying the whole human race.

The historic contribution of the American Constitution and its Amend-ments (the Bill of Rights) was to establish a form of government (a demo-cratic republic) that sought to preempt the possibility of governmentalpower from abusing its citizens. This was accomplished by creating a cor-porate model of State government: where the people were (initially land-holding) stockholders of the “Corporation,” conducting regular elections bythe people of those representing them in government (senators, congresspe-ople, and the President), determining the amount, nature of and limits totheir compensation, dividing government into sectors of power (legislative,executive, and judiciary), and creating checks and balances between them(for example, the President is commander-in-chief of the military, but itsbudget is determined by Congress). The Constitution and Bill of Rightstherefore enumerated the powers granted to various segments of govern-ment, specified limitations to each segment’s powers, and established themeans by which excessive power by one segment may be checked by theother two.

The Constitution and Bill of Rights protect human rights by enumerat-ing a list of duties that each segment of government has to abide by, thusconfirming the corollary nature between rights and duties, and that rightsare protected by mandating duties.

We hope that this discussion inspires more people to continue this areaof study, and to develop this discussion further.

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